(M.N. Auto Electric and Pirco Dry Cleaning, Inc.)¹

When processing an Application for Alien Labor Certification, the employer must initiate a recruitment process to advertise for and otherwise recruit US workers. The Board of Alien Labor Certification Appeals (BALCA) has always ruled that the employer has a duty to commence recruitment and make all reasonable attempts to contact applicants as soon as possible. In response to recruitment ads, US workers usually apply to the Department of Labor, and their resumes are then forwarded to the employer. Although it appears to be the US worker who bears the responsibility to contact the Employer, by sending a resume, the DOL looks to the employer to document the worker's qualifications, usually by interviewing the US worker, either by phone or in person. The question then arises whether the employer must make actual contact with the workers to set up the interview, or whether the employer need only document good faith efforts to contact the worker for an interview. Many applications have been denied for lack of actual contact, but BALCA has typically ruled that the employer would have prevailed, if certified mail had been used to document good faith.

Reasonable efforts to contact qualified US applicants may, in some circumstances, require more than a single type of attempted contact. Where attempts to reach an applicant by telephone are not successful, a reasonable effort requires alternative action, including mail. The use of certified mail, while not a requirement, is for the benefit of the employer in showing that actual contact was accomplished.²

In another important case, Edelweiss Incorporated, d/b/a Vintage Valet, 2000-INA-231 (BALCA, Sep. 23, 2000), BALCA boldly stated that the employer was remiss because he flatly and generally asserted that he had contacted US workers by phone, but had no physical evidence such as a certified mail receipt.⁴ In fact, in almost all cases coming before BALCA, the applications were denied when the employer was unable to prove actual contact.

In contrast to BALCA's rigorous evidentiary standard applied to employers applying for aliens, the general rule in American jurisprudence is that a properly addressed piece of mail placed in the care of the Postal Service is rebuttably presumed to have been delivered. If this rule were applied in labor certification proceedings, the employer would only have to document that he attempted to contact the worker by mail, and not that he actually contacted the worker, by properly mailing a letter through the US Postal Service.

BALCA has heightened the level of proof required for employers to prevail, by establishing presumptions and requiring employers to prove their assertions by more than the preponderance of evidence, however, the imposition of special evidentiary rules can only be invoked by the enactment of a statute or promulgation of regulations interpreting the statute. Since BALCA cannot legally create a new rule of evidence, it seeks to interpret existing rules and not to create them. BALCA itself has explained its position with regard to rule making:

We reject the employer's argument that a CO can only request evidence which is specified in the regulations. The regulations do not note the desirability of certain evidence except in certain instances. By the employer's logic, the government could not require the production of any documentation or statement beyond what is necessary to fill out the application forms. If the CO requests a document which has a direct bearing on the resolution of an issue and is obtainable by reasonable efforts, the employer must produce it. Gencorp, 1987-INA-659 (Jan. 13, 1988) (en banc).

While BALCA fell short of stating categorically in its joint decision that certified mail is the only acceptable form of contact, it reached that conclusion de facto by stating that if an employer does not use certified mail, and a US worker alleges that no contact occurred, the employer's unsupported assertions may not be entitled to much weight in view of conflicting evidence. BALCA also noted that local labor department offices should "strongly suggest" certified mail, return receipt requested, to document contact with workers, especially "given the ease by which a certificate of mailing or a certified mail receipt may be obtained from the postal service and the great motivation for misrepresentations in labor certifications."

The lesson from BALCA is clear: employers should send letters by certified mail, return receipt requested, not only to all potential job applicants, but even to those whom the employer has interviewed by phone or in person. The latter should receive follow-up letters to document that the employer had actual contact. Copies of the letters and certified mail receipts may be used to prove, at a later date, that the employer did contact the workers, even if there is conflicting evidence from US workers. This is especially important because of lengthy DOL processing times. Some US workers will be asked to comment, months or years later, about the employer and the method used to contact them. Often, these comments are solicited by the Department of Labor on simple questionnaire forms that do not identify the employer in great detail. US workers will often be mistaken in their recollection of what happened or about which employer they are being asked to report. Certified mail receipts may then serve as incontrovertible evidence that the employer made either an actual contact, or a bona fide attempt to contact, each and every job applicant.

Mr. Stewart currently practices in the area of immigration law with FowlerWhite in Miami, Florida. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart writes the monthly BALCA Case Summaries for Immigration Law Today and authors official publications of AILA such as the Visa Processing Guide for Procedures at US Consulates and Embassies in Brazil and Portugal. Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is fluent in Portuguese, Spanish, French, and Russian.