BALCA Finds that Employers May Lawfully Reject Candidates During PERM Recruitment Based on Face of Resume

By Dayna Lally[i]

In the Matter of Sunnyvale School District, 2014-PER-00620, June 22, 2017, the Board of Alien Labor Certification Appeals (“BALCA”) reversed the denial of a PERM labor certification application, finding that a U.S. applicant may be found not qualified on the face of their resume.

In Sunnyvale, the Employer filed an Application for Permanent Employment Certification (“PERM”) for the proffered position of “Special Education Teacher.”[ii] The position required a Master’s degree in “Special Education or related field” and “valid California teaching credential authorizing the holder to provide educational services to children from birth through pre-kindergarten who are eligible for early intervention special education and related services …” Id.

The Certifying Officer (“CO”) audited the PERM application and directed the Employer to conduct supervised recruitment in accordance with 20 C.F.R. § 656.21. Supervised recruitment typically arises when the CO determines “the employer substantially failed to produce required documentation, or the documentation was inadequate or determines a material misrepresentation was made with respect to the application.”[iii] The CO instructed Employer to further investigate the credentials of applicants whose resumes raised a reasonable possibility that they met all of the position’s minimum requirements.

Sunnyvale turns on Applicant JR- whose resume indicated that she had a Bachelor’s degree in “Elementary Education, Special Education” and “teaching interest[s] and skills” centered on special education “ranging in all ages grades K-12.” JR’s resume did not mention the attainment of a Master’s degree or a California teaching credential.

BALCA noted that “… JR’s failure to list such a major requirement on her resume meant that she did not possess it.”[iv] Furthermore, BALCA found it unlikely that any “… amount of on-the-job training could substitute for a specialized professional license issued by the state of California.”[v]

Therefore, BALCA held that the CO’s denial was an abuse of discretion, in that the Employer was penalized for violating a rule it had no obligation to follow. The Employer had no duty to contact JR for an interview, and thus lawfully rejected her based on the face of her resume.

Per Sunnyvale, Employers may now lawfully reject U.S. applicants who fail to list a major requirement on their resume. Thus, if an Employer files a PERM for the proffered position of “Computer Science Engineer” and lists the major requirements as a Bachelor’s Degree in “Computer Science, Engineering (any), or Technology,” a U.S. worker may lawfully be disqualified if their resume lists the attainment of a Bachelor’s in Business Administration.

If you have questions regarding the PERM recruitment process and the criteria by which you may lawfully disqualify applicants, please contact our office.

 

[i] Dayna Lally, Esq. is an Associate Attorney in the I-140 Department at Ramineni Law Associates, LLC.  Ms. Lally earned her J.D. from New England Law | Boston and is admitted to practice law in the Commonwealth of Massachusetts and the state of Michigan. Ms. Lally can be reached at 617-600-7201 or dayna@raminenilaw.com.

 

[ii] Department of Homeland Security, “BALCA Overturns Denial, Accepts that U.S. Applicant May Be Found Not Qualified on Face of Resume” (June 22, 2017), AILA Doc. No. 17070333.

[iii] FAQs on Supervised Recruitment, DOL, AILA Doc. No. 09011470.

[iv] Department of Homeland Security, “BALCA Overturns Denial, Accepts that U.S. Applicant May Be Found Not Qualified on Face of Resume” (June 22, 2017), AILA Doc. No. 17070333.

[v] Id.