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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Legal Rejection of U.S. Workers
by Joel Stewart, Esq.

BiographyApril 24, 2000 -- 
Introduction

In the process called “Application for Alien Labor Certification,” the most critical moment occurs when the Employer is confronted with U.S. workers, whose letters and/or resumes are forwarded by the Department of Labor, as possible referrals for the job opportunity. If the Employer succeeds in showing that the referrals are not able, willing, qualified and available, the alien can obtain an approval called a labor certification and apply for permanent residency in one of the Employment Based Preference Categories.

Referrals

Referred to the Department of Labor through ads, U.S. workers report or send resumes to the local job service office for referral to the employer. Other sources might include “public and/or private employment agencies; colleges or universities; vocational, trade, or technical schools; labor unions; and/or development or promotion from within the employer's organization.”1 The Board of Alien Labor Certifications Appeal (BALCA) issues administrative decisions which interpret the regulations and provide rules to which the applicants must adhere. Specifically, the Employer must show that all U.S. workers were rejected solely for lawful job-related reasons.2

Standards for Rejection

Standards for rejection are found not only in BALCA decisions, but also in federal, state and local laws, and in government policies and interpretations. For example, the Dictionary of Occupational Titles3 standardizes the physical, environmental and educational requirements for job applicants. These include years of general or vocational experience, education and training, and physical or environmental requirements, like the ability to stand, push, pull or lift. Industry standards provide additional signposts for employers to follow, such as security measures in the hiring process, interview procedures, and objective indicia of good faith on the part of the Employer.

Referrals vs. Applicants

An important question to ask a priori is whether the individual is a referral or an applicant. Referrals are persons whose names are sent to the Employer or to the Employer’s representative. However, it may never be assumed that a referral is an applicant, because some referrals may not be interested or available for the job opportunity. An example of a mere referral would be an inquiry submitted impulsively to several different employers without respect to the specific job offer. Some referrals are shoppers looking for better work conditions and do not actually seek a job interview. Others plan to move or change jobs at some time in the future, but do not fancy a new job at the moment. The interest level of referrals may also depend on the attractiveness of the job: limited work schedule, less number of hours, high salary, benefits, paid holidays, long vacations, and other assistance offered. Surprisingly, many referrals come from independent contractors, who want to work independently, and not for the employer.

Certified Letters to Job Referrals

Except for very high-paying jobs, in most parts of the country unemployment levels are very low and recruitment, even with newspaper ads, produces few qualified job applicants. Therefore, during the initial consideration, the Employer must determine whether the referral is a job applicant.. If the employer sends a certified letter to invite the referral for an interview, and the referral does not appear, the Employer may assume a lack of interest.4 However, since the DOL thinks that all referrals are applicants, the Employer should also try to contact the referral by phone. BALCA held that the employer should have attempted to contact U.S. applicants for a maintenance worker job by telephone, after none of them responded to its certified letter. Although certified mail may be a proper means for contacting U.S. applicants, a reasonable effort to contact applicants may require telephone calls as well. Employers who assert non-availability of referrals must also document their recruitment efforts with white and green certified mail receipts, showing, not only, that the contact letter was sent to the referral, but that the referral received and signed the receipt.

Selecting Applicants for Interview

If the referral is, in fact, a real job applicant, who wants to apply for the job, the next consideration is whether there should be an interviewed. In normal business practice, Employers do not meet with workers whose resumes fail to list the basic requirements for the job. However, because the DOL believes that Employers must bear an unusually high burden of proof, it has been held repeatedly that Employers must look beyond the applicants’ written credentials to determine if they might possess the minimum qualifications. In furtherance of this concern, the DOL has fashioned a rule that the Employer must investigate each applicant’s credentials. If a resume indicates a broad range of experience, education and training, such that it is reasonably possible that the applicant is qualified for the job,5 the Employer may not reject the applicant without an interview. Resumes, which do not list all the requirements might still raise a reasonable possibility that the applicants are qualified, thereby requiring that they be contacted and interviewed. The Office of Administrative Law Judges has stated that “failure to investigate an apparently qualified applicant is one of the most frequently cited grounds for the denial of labor certification.” Because of the high level of concern that the DOL has to ensure that applicants are properly considered and interviewed for the job, it is advisable for Employers to interview all job applicants, or in the alternative, send a certified letter inviting doubtful cases to call or write if they are in fact qualified.6

Applicant as U.S. Worker

At this juncture the Employer must determine if the applicant is a U.S. worker. The phrase is a term of art, defined in the regulations, 7 and does not include all persons who live and work in the U.S., nor does it include all persons with work authorization. The term is meant to define persons who have permanent work authorization and includes U.S. citizens, permanent resident aliens, and some aliens who have been granted refugee, asylum or other status. Applicants who receive work authorization incident to a temporary work permit, like an H-1B visa, or a class action suit, like Lulac for example, are not qualified, for labor certification purposes, to apply for the job opportunity. Only persons who are U.S. workers need be considered, because the job opportunity in a labor certification application is permanent, full-time and of indefinite duration. Interestingly, some state offices provide instructions to put specific language in advertisements, like “Work authorization required,” or “Equal Opportunity Employer,” however, such instructions are unofficial and may be ignored, since they represent nothing more than the opinion of job service employees and may invite unqualified persons.

Qualified and Able

The Employer’s Investigation of the job applicant’s credentials should determine whether he or she is legally qualified and able to perform the job duties. The analysis begins with the description of job duties and requirements set forth on the Application for Alien Labor Certification. Items 13, 14 and 15 on Form ETA 750A define the job duties, as well as the minimum and special requirements. Applicants must be qualified to perform job duties in a way that is normal in the United States,8 but Employers may not reject workers whose qualifications do not rise to more refined expectations. It is also well established that an employer may not reject applicants because the alien is more qualified. 9 If any U.S. worker possesses the minimum educational, training and experience requirements stipulated by the Employer, then he or she would be considered qualified. Applicants must qualified for Special requirements as well, but only if the Employer has documented the necessity for such skills. When an Employer rejects a worker for lack of experience or ability to perform the job duties, the decision must be based on a key duty that is essential to perform the job. Although an Employer may reject U.S. applicants who lack experience in key duties, lack of experience with lesser duties is not a legitimate basis for rejection.10

Other Forms of Rejection

The evaluation of applicants’ qualifications may depend on Federal or local employment laws and hiring practices. For purposes of illustration, consider a new Florida law on the subject of negligent hiring. The statute, which became effective on October 1, 1999, creates a presumption against negligent hiring, when certain pre-employment screening steps are taken. Florida employers will be presumed to be NOT negligent if a background check fails to reveal any information to reasonably show the prospective employee might be unsuitable for the job. The prescribed steps, necessary to secure the work environment, include the following: (1) A state criminal record search; (2) A driving record, if applicable to the position of the employee; (3) Verification of the applicant’s past employment history; (4) Personal interview of the applicant; and (5) Request for records of previous convictions, or civil suits, if the applicant was a defendant for intentional torts.

Documentation from Job Applicants

Requests for records and documentation might have a chilling effect and should never be made before the job interview. The DOL has stated repeatedly that applicants should be interviewed in a manner that does not dissuade the U.S. Workers from completing the application process. Requests for diplomas, transcripts and reference letters are improper when requested before meeting or speaking with an applicant. however, these documents may be requested after the initial interview.11

Testing Procedures

Testing procedures are permitted in theory but frowned on in practice. The DOL has often held that tests administered in connection with alien labor certification are discriminatory, therefore, the content of the test must be objective and consistent with the job requirements. It should never be forgotten that the test must also have been administered to the alien, before he or she received the job offer. Otherwise the test would be considered restrictive.12

The 45-Day Rule

Although the regulations provide that the Employer must document the results of recruitment within 45 days, the DOL has imposed a separate and more stringent time standard for contacting U.S. Workers. In general, the policy states that an Employer must make efforts to contact qualified U.S. applicants in a timely fashion after the receipt of resumes from the state job service agency, and that failure to timely contact the U.S. applicants indicates a failure to recruit in good faith.13  The Board of Alien Labor Certifications has further mandated that the Employer must contact U.S. workers “as soon as possible.” The determination as to whether the Employer has acted promptly turns on the reasonableness of time required to review the credentials of the applicants. Specifically, BALCA has held that the celerity of contact depends on the number of documents involved; whether recruitment is local; and whether many or only a few persons applied for the position. Justifications for delay are few, and in some cases 10-12 days may be deemed too long. Therefore, all applicants should be contacted within one week of the initial contact.14

Skeletons in the Closet

In the end, the U.S. workers themselves may provide adequate reasons for rejection, due to inconsistencies, fabrications and fraud in the application process. Many job applicants routinely exaggerate, embellish and lie about the details of their education, work experience, training, status and other qualifications. Some applicants, like permanent residents qualify as U.S. workers, because they can work indefinitely in the U.S., have abandoned their residency, by living abroad twelve months or more, and can no longer be considered valid resident aliens. Some U.S. citizens have indiscretions, which they seek to hide during the job application process, while others do not even wish to complete the application process, once begun, for fear of informing the current employer of their intentions to leave. The job interviewer should analyze the resumes carefully, and pose specific questions to confirm the work experience, education and character of each applicant.

Immigration Fraud

Many resident aliens have committed fraud to acquire their green cards. In one case, the Employer cleverly unearthed this fact by noting that the alien had applied for amnesty in the U.S. at the same time that he was living and studying abroad:

“We called Mr. Jang on the telephone. In the interview, he said that he got his green card by General Amnesty. Since Amnesty was a program for people in the U.S. continuously since before 1982, we questioned Mr. Jang about where he worked from 1984 to 1989. He told us that he worked for Dong Kuk University in Korea. This confirmed what he had put on his resume. Since we assume that Mr. Jang did not lie to the U.S. government to get his green card he had to be in the U.S. from 1981-1989, and his resume is a complete lie.” 15

Unfortunately, the Board ruled against the employer only because the job applicant did not have a chance to respond to the accusation. A certified letter to the worker, outlining the inconsistencies, and requesting an explanation, would have saved the day.

Unemployment Insurance

A significant factor in the flux of job referrals comes from persons who are receiving unemployment insurance and are routinely referred to the Employer for job interviews. Many of these individuals are reluctant applicants, at best, who prefer to continue receiving unemployment insurance, rather than begin working. Although some state offices have specific job labels in the computer job bank for labor certification cases, many employment examiners continue to refer applicants. Job applicants referred from these sources usually have a computer printout with information about the employer and may appear unannounced to apply for the job in person. In such cases, the applicant should fill out a job application and be scheduled for a job interview. When there is no recent employment listed or missing periods of time, the Employer should request an update in chronological order. The Employer may also ask the applicant point blank, how he or she was referred for the job, whether by advertisement, internal posting, job service referral or other. Since fraud is widespread in the unemployment insurance program,16 job applicants will be fearful to respond to the Employers’ requests for information.

Conclusion

The current booming economy and job market in the U.S. make it difficult to find qualified workers in most professions. Serious job applicants seek employment with growth potential and good working conditions, but even when qualified job applicants appear, many of them are interested in part-time or temporary work to continue studying or pursuing other objectives. Most of today’s immigrants continue the long-standing traditions of our forefathers, including the family values and the hard-work ethic that made this country the best in the world.

“Immigrants tend to be much more entrepreneurial than the U.S. average, creating large numbers of jobs… a substantial portion of immigrants are much better-educated than the U.S. average and make huge contributions to U.S. companies in biotechnology, computers, electronics, pharmaceuticals, robotics and semiconductors... low-skilled immigrants salvaged the garment and fruit & vegetable industries which otherwise would have gone almost completely offshore... the percentage of immigrants on welfare is about the same as the general population... there's little, if any, displacement of native-born workers by immigrants... a remarkably high percentage of children of immigrants are Spelling Bee champions, National Merit Scholars, Westinghouse Science Contest winners and go on to become successful professionals...the influx of mostly young immigrants helps bail out our Social Security and pension systems, imperiled by the exploding number of elderly.”17

When employers feel the need to legalize aliens, it may be due to a shortage of suitable U.S. workers, but even in a depressed economy, Employers who favor aliens have an arsenal of legal means to reject all U.S. workers who apply.


1 20 CFR Sec. 656.21(b)(1)(i)(A).

2 20 CFR Sec. 656.21(b)(7).

3 Dictionary of Occupational Titles, Fourth Edition, Revised 1991.

4 Sierra Canyon School, 90-INA-410 (Jan. 16, 1992).

5 Gorchev & Gorchev Graphic Design, 89-INA-118 (Nov. 29, 1990) (en banc).

6 GE Aircraft Engines, 89-INA-12, 14 & 16 (Apr. 20, 1990).

7 20 CFR 656.3 “United States worker means any worker who is a U.S. citizen; a U.S. national; lawfully admitted for permanent residence; granted the status of an alien lawfully admitted for permanent residence under 8 U.S.C. 1160(a), 1161(a), or 1255a(a)(1); admitted as a refugee under 8 U.S.C. 1157; or granted asylum under 8 U.S.C. 1158.”

8 20 CFR 656.21(b)(2) prohibits the use of unduly restrictive job requirements in the recruitment process. Thus, the employer cannot use requirements that are not normal for the occupation or not included in the Dictionary of Occupational Titles (DOT), unless the employer establishes business necessity for that requirement. If the employer documents that the requirement is normal for the occupation or that it is included in the DOT, business necessity need not be established.

9 K Super KQ 1540-A.M., 88-INA-397 (Apr. 3, 1989) (en banc).

10 Saritejdiam, Inc., 89-INA-87 (Dec. 21, 1989).

11 Peter Blond (USA), Inc., 90-INA-229.

12 Sentient Systems, 94-INA-519 (BALCA, Jan. 23, 1996)

13 Loma Linda Foods, Inc., 89-INA-289 (Nov. 26, 1991) (en banc).

14 Shaw’s Crab House, 89-INA-139 (Jan. 3, 1990.

15 New Jersey First Methodist Church, 94-INA-535 (BALCA, August 1, 1996).

16 National Society of Professional Insurance Investigators.

17 U.S. Immigration Policy and the American Economy by Vernon M. Briggs, Jr. and Stephen Moore.



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