Page 40 - The Indian EYE 112621

IMMIGRATION NOVEMBER 26, 2021 | The Indian Eye 40

florida detox centers provides

further Guidance on resume review

in Labor certification recruitment

CYRuS D. MEhTA & JESSICA and ascertain whether there on-the-job training. applicant without an interview a duty to investigate the appli-
Previous decisions by the
PASzKO* are U.S. workers available for Board of Alien Labor Certi- even though there was a rea- cant further given the level of
the job. Employers may only
detail in the applicant’s resume
sonable possibility that the ap-
u nder the Immigration reject applicants for lawful, job fication Appeals (“BALCA”) plicant met the requirements which allowed it to readily de-
Nationality
and
Act
of the job opportunity. The
termine that the applicant’s
related reasons in accordance
have indicated that where an
(“INA”), U.S. employ-
ers wishing to sponsor a foreign with 20 C.F.R. § 656.10(c)(9), applicant’s resume shows a applicant’s resume clearly indi- experience was not similar or
relevant to the job opportunity.
cated that the applicant lacked
such as when an applicant is not
broad range of experience,
worker for employment and qualified for the job opportuni- education, and training that the required two years of ex- The BALCA was satisfied
permanent residence must first ty. However, the regulations raises a reasonable possibility perience in the job offered. with the employer’s explana-
prove to the Department of La- also provide that a U.S. worker that the applicant is qualified, Nonetheless, the DOL argued tion for rejecting the applicant
bor (“DOL”) that there are no is able and qualified for the job even if the resume does not ex- that the employer did not meet and that the employer, in the
sufficient workers who are able, opportunity if the worker can pressly state that the applicant its burden by failing to investi- selection process, concluded
willing, qualified and available acquire the skills necessary to meets all the requirements, the gate the applicant further and that based on the applicant’s
for the prospective job and that perform the duties involved in employer bears the burden of conducting an interview. The resume and its business op-
hiring the foreign worker will the occupation during a rea- further investigating the appli- DOL pointed to the applicant’s erations and staffing, that the
not adversely affect the wag- sonable period of on-the-job cant’s credentials. See Blessed resume which indicated expe- applicant possessed two years
es and working conditions of training. 20 C.F.R. § 656.21(e) Sacrament School, 96-INA-52, rience similar to the job duties of experience in only 25% of
workers in the U.S. similarly (4). Therefore, an employer slip op. at 3 (Oct. 29, 1997); described on Form 9089 as well the job duties, and that for
employed. INA § 212(a)(5)(A) may lawfully reject a U.S. work- Matter of Goldman Sachs & as the applicant’s four years of the remaining 75% of the job
(i). er for being unqualified, only if Co., 2011-PER-01064 (June experience in the Operations duties, the applicant would re-
Before employers can file the employer determines that 8, 2012). These decisions dis- Analyst/Strategic Sourcing Co- quire a full two years of train-
an Application for Permanent a U.S. applicant does not meet cussed in a previous blog put ordinator industry. ing in 40% of the job duties,
Employment Certification, or the requirements listed on pressure on employers to inter- In the matter before the and more than the normal six
Form 9089, sponsoring a for- Form 9089 and the U.S. appli- view U.S. applicants, no mat- BALCA, the employer, on months of training in the re-
eign worker, they must conduct cant could not acquire the skills ter how convinced they may reconsideration, thoroughly maining 55% of the job duties.
a good faith recruitment effort during a reasonable period of have been that the applicants expanded on its reasons for The BALCA found that the
were unqualified for the rejecting the applicant and de- employer’s explanation, which
position based on their re- tailed why the applicant was the employer substantiated by
sumes, or else risk a deni- unqualified for the job oppor- detailing the specific period of
al of the foreign worker’s tunity such that an interview time that training would take,
labor certification. How- or further inquiry was unnec- sufficiently demonstrated that
ever, a recent BALCA essary. The employer argued the applicant could not ac-
decision, Florida Detox that it was not able or willing quire the necessary experience
Centers, 2017-PER-00236 to accept less than two years of through a reasonable period
(Aug. 24, 2021), may offer experience, as stated on Form of on-the-job training. The
some leeway to employers 9089, nor should it have been BALCA accepted the employ-
by allowing them to reject required to do so, given the high er’s argument that it should
applicants on the basis of specific vocational preparation not be required to offer more
their resumes. level (“SVP”) of 8 assigned by than 6 months of on-the-job
In Florida Detox Cen- the DOL for the occupation training for an Operations An-
ters, the employer sought of Operations Analyst under alyst assigned an SVP level of
to employ an “Operations O*Net Code 13-1111. An SVP 8 because the additional train-
Analyst” with “two years of 8 generally requires between ing “would severely jeopardize
of experience in the job of- four and ten years of education, the operational and financial
fered,” and having found training, and/or experience, but well-being of the business, par-
no such U.S. worker, filed the employer was only requir- ticularly when the specific pur-
Form 9089 sponsoring a ing two years of experience in pose of [the job opportunity] is
foreign worker for the po- the job offered. The employer to improve and maximize effi-
sition. The employer was compared each duty identified cient and effective operations”
subjected to supervised in the Form 9089 to the appli- of the business.
recruitment by the DOL. cant’s resume and determined While the BALCA’s con-
In its recruitment report, that the applicant only had clusion appears helpful to em-
m of the employer stated that it experience in 25% of the job ployers, it should not be taken
CYRUS D. MEHTA & PARTNERS PLLC received 240 applications duties described in the form. to mean that all employers
for the job opportunity,
The employer also stated that
can avoid a labor certification
interviewed 20 applicants the applicant lacked any expe- denial by relying on the argu-

it found to be potential- rience in three important job ment that necessary job ex-
ly qualified and rejected duties described in the form. perience cannot be acquired

  220 applicants because According to the employer, it through a reasonable period
   
­ they did not possess the was “unrealistic to . . . consider of on-the-job training. Indeed,
€
‚  
minimum of two years an applicant completely lack- in a 2012 decision, Kennamet-
of experience based on ing experience in nearly 40% of al Inc., 2010-PER-01512 (Mar.
the face of their resumes. the job duties,” especially given 27, 2012), the BALCA found
the employer’s requirement of
The DOL denied labor
that the employer rejected a
certification, finding that a minimum of two years of ex- number of applicants for other
2 6th Floor the employer rejected a perience in each job duty. The than lawful, job-related rea-

    potentially qualified U.S. employer claimed not to have sons. There, the employer did
www.TheIndianEYE.com