The Board of Alien Labor Certification Appeals (“BALCA”) recently suggested how an employer may demonstrate that on-the-job training is necessary for a position. In Microsoft Corp, 2014-PER-00615 (February 25, 2019) the employer rejected an applicant after an interview, finding the applicant was not sufficiently familiar with Scripting, C++, HTML, and Window as required. The Board affirmed the denial and held that the employer had failed to adequately document that the applicant could not qualify after a reasonable period of on-the-job training. BALCA stated that “more than a bare assertion is needed to prove that it is infeasible to train new workers within a reasonable period of on-the-job training.” The court then explained that an employer may demonstrate that on-the-job training is required in the following ways: documentation from a vocational expert comparing the exact job requirements in the ETA Form 9089 to Applicant C.P.’s education, knowledge, experience, and skills; industry experts explaining the minimal requirements necessary to commence work in the position and why training in noted deficiencies is an not acceptable course of action; or an affidavit of the hiring official detailing the deficiencies noted with the basic job requirements and establishing a business necessity as to why the deficiencies cannot be corrected with any period of on-the-job training. While some experts argue that this case is overreaching, the case is nonetheless a reminder that employers should explain in detail why on-the-job training is required for a particular position when denying an applicant on this ground.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer should interview an applicant during the recruitment process in The Bank of Tokyo-Mitsubishi UFJ, LTD. In this case, the Employer filed an Application for Permanent Employment Certification (“ETA From 9089”) for the role of “Analyst/Systems Specialist-Systems Office for the Americas.” The case was audited and denied on the basis that the Employer unlawfully rejected a potentially qualified U.S. applicant without an interview. BALCA upheld the denial. First, the Employer required an Associate’s Degree “in any field” or 36 months of experience in “[r]elated tech exp w/systems analysis, design&dvlpt [sic], w/.NET, C#, C, C++, VBA.” Therefore, the fact that the Applicant did not list an Associate’s Degree on his or her resume was not an appropriate basis of disqualification. Second, the Applicant had more than 15 years of software development experience so it was reasonable to conclude that he may have 36 months of experience in the necessary skill sets. Notably, BALCA also rejected the Employer’s argument that the Applicant was not qualified because he had experience in “SQL programming language” and the Employer required technical development experience with “SQL Server (AF11).” BALCA explained that this did not matter because Section H of the ETA From 9089 did require experience with a particular type or version of SQL. This case is thus a sobering reminder that employers should error on the side of caution and interview (or inquire further regarding) possibly qualifying U.S. applicants.