New PERM Issues for Employers – Interviewing US applicants

Consider these facts: ABC company has a valuable employee for whom they have filed a PERM application with the Department of Labor. The job requirements are a Master’s degree with a very specific set of skills.

Select International Inc.

In the matter of Select International, Inc., a decision issued by Board of Alien Labor Certification Appeals (BALCA) on 19 September 2012, the board held that if a US worker submits a broad resume in response to an advertisement for a job opening, the employer must not only review the application, but must also provide in-depth reasoning as to why the US worker does not meet the minimum experience requirements for the job advertised.

Select International advertised a position for an industrial/organizational psychologist. The company stated that they would accept any suitable combination of experience, training and education (Kellogg language). Resumes from three potentially qualified applicants were rejected for not meeting the employer’s minimum requirements. Select International did not interview the applicants or send letters of rejection. The employer in particular rejected Avi Avigdor, a US worker who applied for the job opportunity. BALCA denied labor certification because no further consideration was given to his resume beyond a review.

To conduct a recruitment in good faith, an employer “must take steps to ensure that it has lawful job related reasons for rejecting US applicants, and not stop short of fully investigating an applicants qualifications” (E. Tenn. State Univ.). No US worker should be rejected for lacking the skills necessary to perform the duties involved if they are capable of acquiring the skills during a reasonable period of job training, and there is no lawful job-related reason for rejecting the US worker.

Select International stated that the job opportunity was for a person with a masters degree in industrial/organizational psychology and required 36 months of experience, and that coursework must include personnel selection; employment law; legal issues related thereto; candidate testing and selection; job analysis; development of job candidate selection tools; and advanced statistical analysis using statistical methodologies. Select International also state in Form 9089 that it would accept any suitable combination of education, training or experience.

The job required development of new assessment tools and techniques; in-depth statistical analysis; detailed reports; and recommendations. Select International stated that Mr. Avigdor did not meet minimum experience requirements because his 47 months of experience was not related to the job duties to be performed in the  position offered. The company also noted that none of the positions held by Mr. Avigdor involved skills listed on the PERM application, nor did he have the experience to perform the core duties required by the job. Therefore, he did not have the combination of educational training and experience to qualify for the position.

The PERM certification was denied on the basis that Mr. Avigdor’s credentials were not investigated fully.

What is an employer to do?

Given the facts of this case, perhaps the best course of action for an employer is to interview all suitable applicants and to document job-related reasons for rejection. Kellogg language should be used sparingly on PERM applications, unless employers are willing to accept any suitable combination of education, training and experience from US job applicants with broad resumes.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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