Labor Certification - How much effort must an employer make to contact applicants?

By Vincent Martin, Bloomington, Minnesota, Immigration Lawyer

www.cundyandmartin.com

In a recent labor certification case, the Board of Alien Labor Certification Appeals (BALCA) held that an employer must do more in its attempts to contact applicants than email and telephone calls.

"What constitutes a reasonable effort to contact a qualified U.S. applicant depends on the particular facts of the case under consideration. Where an employer establishes timely, actual contact, ipso facto, a reasonable effort is proved. HRT Clinical Laboratory, 1997-INA-362 (March 10, 1998). In some circumstances it requires more than a single type of attempted
contact. Yaron Development Co., Inc., 1989-INA-178 (Apr. 19, 1991) (enbanc). An employer who does no more than make unanswered phone calls or leave a message on an answering machine has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a letter –which may be certified mail, return receipt requested. Any Phototype, Inc., 1990-INA-63 (May 22, 1991); Gambino’s Restaurant, 1990-INA-320 (Sept. 17, 1991). M.N. Auto Electric Corp., USDOL/OALJ Reporter at 10-11.

In the instant case, the Employer argued that its efforts to telephone or email two of the applicants in order to schedule an interview constituted good faith recruitment because such a procedure is the way recruitment normally occurs in its business. We agree with the CO, however, that what may be considered adequate recruitment by anemployer for routine hiring is not necessarily adequate to establish good faith efforts to recruit U.S. workers for the purposes of supporting a labor certification application. Clearly, sending a recruitment letter to the two applicants who could not be reached by telephone would not be an undue burden. In the instant case, there is no evidence that the Employer attempted any alternative means of contact, by certified mail or regular mail, despite the unsuccessful telephone calls and email. The Employer’s meager steps toward trying to reach applicants show a minimal effort that by itself does not equate to a good faith recruitment effort. The Employer's effort must show that it seriously wanted to consider the U. S. applicant for the job, not to merely go through the motions of a
recruiting effort without serious intent. Dove Homes, Inc., 1987-INA-680 (May 25, 1988)
(en banc); Suniland Music Shoppes, 1988-INA-93 (Mar. 20, 1989) (en banc)."

BALCA Case No.: 2008-INA-00065