Employer’s Good Faith Recruitment Efforts and Sponsoring Foreign Nationals

When sponsoring a foreign national for permanent residence (“green card”) through the labor certification process, employer’s are required to undergo recruitment to verify that no qualified U.S. workers were available to fill the position being offered to the foreign national. In conducting the recruitment, the employer is required to use various means to contact applicants. Previous decision by the Board of Alien Labor Certification Appeals (BALCA) have held that employers must use alternative means of contacting applicants if the initial contact did not result in a response from the applicants. Otherwise, according to the Board, the employer cannot really establish that it has conducted good faith recruitment as required by the regulations.

While employers are advised to use more than one method of contacting applicants (phone, certified mail, email etc.), the Board has now stated that if the Certifying Officer (CO) at the Department of Labor (DOL) never tells the employer that documenting good faith recruitment requires using more than one type of contact at the time the job order is placed by the State Workforce Agency and advertising instructions provided, then the application cannot be denied on that ground alone.

Specifically, in Joyful Manor, 2001-INA-157 (March 27, 2002), the Board reinforced its prior decision and stated that “it is fundamentally unfair to deny a labor certification application solely on the ground that alternative means of contact were not used . . . . [This] would eliminate the opportunity for an employer to rightly complain that the COS played a game of ‘gotcha’.”

The CO had argued in its motion for reconsideration that the DOL policy embodied in the holding of M.N. Auto Electric Corp, 2000-INA-165 (Aug. 8, 2001) (en banc) only suggested, and did not require, that the CO instruct local job services to provide early notice to employers that they have an obligation to try alternative means of contact if the initial contact did not result in a response from the U.S. applicant.

Given that the employer’s responsibility to contact U.S. workers involves more than one type of contact, i.e., both in writing by certified mail and by telephone, the Board held that it would be fundamentally unfair to place such a burden on employers without advising them before the recruitment commences. The Board concluded, “Reading M.N. Auto Electric Corp. in the manner suggested by the CO would be tantamount to authorizing a CO to also engage in gamesmanship by not explaining the rules of the game until it is too late for an employer to remedy the problem.”