BALCA Denies Claim of Multiple Job Openings Posted Nov 03, 2006 ©MurthyDotCom The U.S. Department of Labor's (DOL's) Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification in which the employer hired a U.S. worker who responded to the recruitment efforts. The employer had argued that there were multiple job openings; therefore, the job described in the labor certification was still available, notwithstanding the hiring of a U.S. applicant. The case, in the Matter of Custom Landscape Construction, on behalf of Conrado Martinez, was decided on October 17, 2006. ©MurthyDotCom Background of the Case ©MurthyDotCom The case started with a labor certification application, filed on March 26, 2001, for the position of a landscaper / gardener. The DOL's Certifying Officer (CO) issued a Notice of Findings (NOF) indicating the intent to deny the case based on two factors. First, the CO found that the position no longer was available, as the employer had hired one of the U.S. applicants for the job. Second, the CO found that the employer did not make sufficient efforts to contact a second U.S. applicant. The fundamental requirement for obtaining a labor certification approval, as regular MurthyDotCom and MurthyBulletin readers will recall, is demonstrating that there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the offered job duties or work in that particular position. ©MurthyDotCom Employer Argument ©MurthyDotCom The employer argued that there was more than one job opening, although there was only one labor certification. The CO did not accept this argument and found that, by hiring the U.S. worker, the job was filled by a qualified U.S. worker. Accordingly, no labor certification could be issued, as the key no-available-U.S.-worker standard was not satisfied in this case. ©MurthyDotCom On appeal, the employer argued that there were really multiple job openings. Thus, there still was a job that could not be filled by a U.S. worker. BALCA rejected this argument, finding that the record was devoid of any evidence that there was more than one job opening. They pointed to the advertisements used to recruit for the position. These described a position of landscaper / gardener in the singular. They did not use the plural or otherwise indicate that there was more than one position. The claim of multiple positions, in the opinion of BALCA, was raised only in the employer's rebuttal to the NOF. ©MurthyDotCom Multiple Positions Possible ©MurthyDotCom It is possible to file a labor certification for positions for which there are multiple openings. It is not particularly unusual for employers to have multiple identical positions available within the same organization or even in the same department of an entity. As pointed out by BALCA, however, the employer must state this explicitly from the beginning of the labor certification and throughout the process. The advertisements would be expected to reflect the fact that there are multiple openings. The employer did not do so in this instance. Therefore, BALCA was not willing to accept the claim that more than one job opportunity existed; resulting in the affirmation of a denial of the labor certification in this case. Copyright © 2006, MURTHY LAW FIRM. All Rights Reserved
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