BALCA Finds Employer Efforts to Contact U.S. Applicants Lacked Good Faith

The board that reviews PERM denials (“BALCA”) recently upheld a PERM denial when an employer failed to make additional attempts to contact job applicants after discovering that its certified mail interview invitations had not been delivered. BALCA therefore found that the employer had failed to establish that it had made a good faith effort to contact qualified U.S. applicants.

The PERM application process requires an employer to conduct mandatory recruitment steps in a “good faith effort” to recruit U.S. workers prior to filing the PERM application. Furthermore, the regulations require that the employer certify that “[t]he job opportunity has been and is clearly open to any U.S. worker” and that “the U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons.”

In this case, the employer had sent interview invitations via certified mail to four U.S. applicants. However, when the tracking information revealed that these invitations did not reach the four applicants, the employer did not make additional attempts to contact the applicants via the email addresses or phone numbers provided on the applicants’ resumes.

On appeal, the employer argued that its failure to make additional attempts to contact the four applicants was not in bad faith, and that it usually contacted applicants “either through the postal service or through other reasonable means.” Furthermore, the employer argued that its certified mail receipts for the interview invitations alone proved that it had made a good faith effort to contact the qualified U.S. applicants.

BALCA, however, disagreed with the employer’s argument, finding that if the employer had been “making a real effort to contact these four applicants” it would have emailed or telephoned the applicants once it realized that the applicants had not received the certified mail interview invitations. To not do so constituted a lack of good faith in recruitment. Therefore, BALCA found against the employer, and affirmed the adjudication officer’s denial of the PERM application.

This is another indication that employers engaged in a PERM recruitment must thoroughly document that they have used at least two methods of contacting potentially qualified U.S. workers, such as by phone, email, and U.S. mail.