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Employment-Based Visas – Labor Certification – Availability of Native Workers – Lawful Rejection of U.S. Workers

Employers who wish to bring in alien labor must apply for and receive labor certification for those workers. The United States Department of Labor decides these applications, determining, among other things, whether sufficient native workers are available to fill the positions. To be considered in the pool of sufficient workers, natives must be able, qualified, willing, and available for the job.Before alien labor may be hired, employers must follow certain rules governing advertising, discussed fully in a separate article. When natives respond to these advertisements, they must be considered and evaluated fully. Employers may only reject native applicants for lawful reasons, such as the inability to perform the duties of the job.General Principles

The Department of Labor function of evaluating applications for labor certification is carried out by certifying officers. These officers consider whether native applicants for an employer’s job have the requisite training, education, and experience to meet the employer’s job requirements. If sufficient U.S. workers meet these requirements, the employer’s application for labor certification is denied because alien labor is not necessary.

An officer cannot substitute his or her own judgment for that of the employer, for instance, by finding that an applicant possessed qualifications equivalent to those required by an employer. However, the officer may find that an employer had a duty to inquire further in some situations about an applicant’s qualifications. For example, if an applicant is only missing an incidental requirement or if an applicant’s resume is very broad so that he or she may actually meet the minimum requirements, an employer may be charged with a duty to inquire further about his or her qualifications.

Employers may always reject applicants who fail to appear for a scheduled interview, who are not interested in a job because of the wage or location, or who fail to provide job references. However, they may not reject U.S. applicants because the applicants are overqualified or because of subjective reasons that are not related to the job.

Inability to Perform Job Duties

Additionally, employers may always reject U.S. applicants because they are unable to perform the duties of the job, although employers must provide detailed documentation of this inability. In these situations, an applicant may meet the job requirements on paper, but the prospective employer may later discover that the applicant’s knowledge is stale or insufficient. As long as the employer can document the applicant’s inability to perform the duties of the job due to objective criteria, the applicant may legally be rejected.

Similarly, an employer sometimes omits certain job criteria. This can happen, for example, by accident. It can also happen if the employer fails to state job requirements that are necessary components of other job requirements or are implicit in those requirements. If an applicant does not meet these omitted criteria, the applicant may legally be rejected.

Copyright 2015 LexisNexis, a division of Reed Elsevier Inc.