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A Colloquy On Bronx Medical And SVP Approach

by Joel Stewart and Gary Endelman

The following email conversation between Gary Endelman and Joel Stewart discusses the
BALCA decision, Bronx Medical and Dental Clinic, 1990-INA-479 (Oct. 30, 1992).

Gary Endelman:

In your recent article reviewing the BALCA decisions in 2003, you cite Bronx Medical for the proposition that an "Employer can not reject a US worker on the basis of the resume but must investigate further." I do not read the decision saying that. Bronx Medical stands for the proposition that, if an employer's requirements are not challenged by CO, the CO cannot say that a US job applicant can be qualified on the basis of a combination of education, experience and training. Indeed, this is precisely what the Twin Palms case cites it for. Only if the employer cannot tell if the applicant is qualified from the face of the resume, is the employer required to go further and interview under Gorchev and Gorchev Graphic Design. 89-INA-118 (Feb. 22, 1990).

Joel Stewart:

You have opened a fine kettle of fish! I went through everything and came up with an interesting response for you. Gary, you wrote,
"Bronx Medical does not say that an obviously unqualified worker cannot be rejected solely from resume but must be interviewed. This would be an undue burden on an employer."
The ultimate effect of Bronx Medical and its progeny stems from the concurring decisions...although they upheld the right of the employer to reject on the basis of the applicant's lack of qualifications, they warned that the Employer would continue to have the responsibility to show why specific workers were not qualified. In fact, all the cases on this point have held that there is a burden to investigate further. It's a different issue but the same issue (the issue has two dimensions). Dimension one -- can the employer reject on the basis of the resume, where the resume shows the applicant not qualified -- apparently yes, the employer can reject such an applicant. Therefore, dimension one stands on the degree requirement in Bronx -- an MBA was required, and the US workers didn't have it. Dimension two -- the employer has a continuing responsibility to document that a U.S. worker could not perform the job based on a combination of experience, education and training. Dimension two stands on the possibility that the U.S. workers, who did not have the degree, could have qualified for the job based on a combination education, training and experience. The Board's ruling in Bronx upheld Dimension One and Dimension Two at the same time. The last paragraph in Section A of the holding stated that the Board would leave for another day the question of how far a CO may go in disregarding stated job requirements, like an MBA, and substituting her own judgment as to what it takes to do a job in a normally accepted manner. The concurring decisions went on to clarify the importance of a Dimension Two analysis, i.e., requiring the Employer to not only document that the job applicant did not meet the stated requirements as stated on the resume, but to document why the applicant did not meet the requirements by a combination of education, experience and training.

In effect, what happened in Bronx, is that the Board held that the CO could not substitute HER opinion, after the fact, about whether an applicant appeared qualified based on a combination of education, experience and training, but at the same time, upholding the principle that the Employer has a responsibility, under the regulations, to document that very fact. The way the decision was written, and its narrow scope, was regrettable. It seems that the decision was written before the judges could rule on it, and each one applied a different gloss in its analysis.

Prior to the Board's decision in Bronx, previous panels (and the DOL in general) had, in practice, confused the two regulations [656.212(b)(2) and 656.212(b)(7)] and merged them into one. Employers were being told that they had to consider applicants qualified, but usually the CO was initiating the inquiry, based on HER/HIS opinion.

What the Board wanted to say in Bronx was that it is not the CO's right to determine the applicant's qualifications. They should have made it more clear that the decision didn't mean that the applicant's qualifications didn't have to be considered...on the contrary, they do have to be considered, but by the Employer, not by the CO!

Consequently, in Bronx progeny cases, i.e., in all future cases, the DOL and the Board have held consistently held that the Employer has a duty to inquire as to whether the applicants are qualified on the basis of their resumes. In very few cases, the resume alone would serve as sufficient proof (i.e., where there is no equivalent experience, education or training listed or possible). Thus the Employer's duty to inquire replaced the CO's right to make judgments after the fact.

Take a look at the BALCA deskbook, just to see how confusing this topic is....I am reproducing the relevant section below:

"Employer unlawfully rejected qualified U.S. workers and labor certification was properly denied where the CO reviewed the resumes of U.S. applicants and determined that their particularly stated Master's degrees should have been considered qualifying. The panel found that, essentially, the CO challenged Employer's degree requirement as unduly restrictive and afforded employer the opportunity to change the requirement or provide business necessity. The fact that the CO made this determination after reviewing the qualifications of U.S. applicants did not mean that the CO improperly substituted her judgment for employer's unchallenged job requirements as precluded by Bronx Medical and Dental Clinic, 90-INA-479 (Oct. 30, 1992)(en banc). The panel distinguished this situation from one described in AFS Intercultural Programs, 92-INA-358 (May 11, 1994), where the CO's challenge of the minimum requirements was "inextricably linked" to review of U.S. applicants properly rejected for not meeting the otherwise acceptable minimum requirements. Here, unlike in AFS, employer admitted that the particular degree requirement was unduly restrictive but was unable to convincingly explain why it would not expand the degree requirement as instructed. Council on Int'l Educ., 93-INA-136 (Nov. 10, 1994)."

In conclusion, I have always viewed Bronx as requiring the Employer to inquire into the U.S. worker's alternative qualifications (kind of a reverse Kellogg situation) and the Kellogg decision is a direct result of Bronx. Francis Kellogg, 1994-INA-465 and 544, 1995-INA 68 (BALCA Feb. 2, 1998) (en banc).

Putting Bronx and its progeny into practice - Using a Specific Vocational Preparation (SVP) analysis, if you have a job requiring 4-10 years experience, and the Employer requires a degree in engineering (two years SVP) plus a master's degree (another two years SVP) plus five years of experience, and a candidate shows up without the master's degree, but with 10 years experience, he/she might still be considered qualified, and the Employer has a duty to inquire, i.e., contact the applicant to confirm that the applicant could not possibly be qualified! On the other hand, if the applicant had just graduated from graduate school, and the resume showed no related work experience, or better yet no work experience at all, then the Employer could safely reject on the resume, since there would be no possibility of qualifying on the basis of a combination of SVP factors.

In the pre-RIR world, the Employer had the burden of Bronx and its progeny -- i.e., the responsibility to contact almost every applicant to prove good faith, i.e., to prove that the applicant had been considered in terms of a combination of education, experience and training.

By the way -- All that went out the door with RIR -- under the GAL's, the DOL (and now the employers) are authorized to discard any resumes from persons who do not appear qualified...and only the applicants who seem qualified on the basis of their resumes persons should be interviewed. Under current RIR policy, one might depend on the narrow reading of Bronx...However, the GAL's current policy do not have the force of regulations, and the regulations and Board decisions interpreting them are still the law of the land. Therefore, you can rely on the narrow holding in Bronx, but only at your peril! At any given moment you could receive an NOF stating that you rejected workers who appeared qualified, and I do not believe that the vague language of the GAL would protect you.

In essence, then, I do not agree with your presumption, that it is unfair for Employers to have to investigate seemingly unqualified workers, but in the current RIR world, the Employer alone controls this tool.

Gary, you have really raised an interesting question and I have been pleased (and challenged) to respond!

Gary Endelman:
Joel, if you are saying that BALCA has subsequently narrowed the application of Bronx Medical, no argument. If you are saying that PERM will do away with Bronx Medical, absolutely the case. If you are saying that employers who rely on the resume better be sure, also true. The issue is a basic one, namely whether the applicant can do the job. I know of few cases where an employer would rely ONLY on the absence of a stated requirement, such as an educational degree. Rather, almost always, the absence of such a degree is advanced as a basis for disqualification in the context of a larger argument, namely that the applicant lacks the ability to do the job, with the lack of education being one reason why this is so. Where it is obvious from the face of the resume that the applicant lacks the ability to do the job, there in nothing in Bronx Medical that compels any additional inquiry.

The prudent employer will certainly show all good faith to make reasonable inquiry. The issue always remains whether the job applicant can do the job. The concurrring opinions in Bronx Medical accepted this. In fact, Judge Brenner's concurrence explicitly cites with approval the Fifth Circuit ruling in Ashbrook-Simon Hartley v. McLaughlin, 863 F.2d 410 (5th Cir. 1989)(that BALCA applied nationally in Golden Bell, 93-INA-564) in which inability to do the job, despite satisfaction of minimum experience requirement, was a basis to uphold applicant disqualification.

Gorchev contains a very interesting discussion of how an employer should judge the credentials of a job applicant. Listen to what BALCA says here:

The Board has held that an Employer bears the burden of further investigating an applicant's credentials where the resume shows a broad range of experience, education, and training that raises a reasonable possibility that the applicant is qualified. Nancy, Ltd., 88-INA-358 (April 27, 1989) (en banc). This means that where the resume shows that an applicant meets the major job requirements, but is unclear on whether the applicant meets one of the detailed subsidiary job requirements, the employer is obligated to interview or obtain other information to determine whether the applicant is fully qualified (emphasis added).
Joel, under this logic, if a resume does not show that an applicant meets the major job requirements, no obligation to interview arises, right? Before you say "NO WAY!", consider this delicious morsel from Nancy itself:
"The Board has held that an Employer can reject a U.S. worker solely on the basis of his or her resume where the resume indicates that the U.S. worker does not meet the job requirements." See, e.g., In re Anonymous Management, 87-INA-672 (Sept. 8, 1988) (en banc).
Not content to rest on what Nancy said, and leading what must be a very dull life, I looked up the text of BALCA's decision in Anonymous Management, and decided it should no longer remain hidden from public view.
Here's why:
In the Matter of ENY Textiles, 87-INA-641 (January 22, 1988), we held that the employer in that case properly decided on the basis of a resume that a U.S. worker lacked the minimum qualifications necessary for the position offered, and that the rejection of this applicant on the basis of a resume alone was proper. We further held that the worker's lack of qualification for the position offered was "clear from a comparison of his resume with the Employer's job requirements." Id. at 5. ( emphasis added)
The obligation to engage in good faith recruitment is implicit in the regulations and the burden clearly rests on the petitioning employment to document that this has, in fact, taken place. However, I would remind you Joel that in M.N. Auto Electric Corp., 2000-INA-165 (Aug.8,2001)(en banc), BALCA draw back from saying that an employer had to establish actual contact with all applicants; only reasonable efforts at doing so are required. What is unreasonable about not contacting an applicant who gives absolutely no indication of having any aptitude for the job on the face of their resume? Indeed, can one not argue that the submission of such a resume by this kind of applicant is both frivolous and an abuse of the system? If we argue that all applicants must always be contacted, then what meaning is left to the qualification on the employer's burden that BALCA rightfully placed there?

There can be no argument Joel that, where extensive experience is listed on the applicant's resume, the employer cannot rest on rejection by resume alone and is also required to produce objective and detailed reasons for rejecting the applicant after interview. Orient Computer Corporation, 91-INA-322 (March 18, 1994). What if the resume does not go to such lengths? Is everyone so careful or such a skilled advocate for their own qualifications? Would it not be a fair inference, then, from what BALCA says in Orient Computer that, at least to some reasonable extent, the degree to wh ich an employer must interview varies according to what the resume says?

Remember my good friend that, where the U.S. applicant clearly does not meet a stated job requirement, the burden then shifts to the CO to explain adequately why the U.S. applicant is qualified. Only if the CO can discharge such a burden would the denial of certification be sustained by BALCA on appeal. While no one can doubt that BALCA would never tolerate exclusive reliance on a resume as a subterfuge by an employer who looks for technical excuses to reject qualified US applicants, it is also true that the CO who has nothing more to go on than this very same resume should be held to the same close scrutiny and high standards.

If an employer must always go beyond the resume, would it not be simple and equal justice for the CO to have to do the same thing?

Joel Stewart:
As far as the basic premise, where it is obvious from the face of the resume that the applicant lacks the ability to do the job, there in nothing in Bronx Medical that compels any additional inquiry. I guess I regard the narrow Bronx holding (the one you mention above) as a red herring, because the Employer has a duty to inquire as to the U.S. worker's qualifications, and there have never been any good cases or rules to use as a safe harbor. When all else fails, the DOL then, without overturning Bronx, finds that the Employer has a lack of good faith, because it does not inquire further, therefore, no real interest in the recruitment process.

That leaves you in the position where you proved your point (candidate not qualified) but in so doing you showed a lack of good faith!

In response to your following comment:
"I would take issue with the SVP approach. The issue is not the number of years of experience, or whether an applicant does or does not have them, but whether the applicant can do the job. I know of few cases where an employer would rely ONLY on the absence of a stated requirement, such as an educational degree. Rather, almost always, the absence of such a degree is advanced in the context of a larger argument, namely that the applicant lacks the ability to do the job, with the lack of education being one reason why this is so."
SVP is the same thing -- It's just a measuring stick, tool, to define the "ability to do the job" -- Ability to do the job has to be defined in terms of education, experience and training -- there isn't anything else to objectively explain why a person can't do something. (not talking about physical, mental, environmental impediments....).

In conclusion, the decision in Bronx Medical means the exact opposite of what it states, but just as in Alice in Wonderland, when we practice labor certification law, we learn to read things backwards and words that appear as Jabberwocky, upon closer examination may suddenly take on new meaning.


About The Author

Joel Stewart currently practices in the area of immigration law with Fowler White Burnett P.A. in Miami, Florida. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart writes the monthly BALCA Case Summaries for Immigration Law Today and authors official publications of AILA such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is fluent in Portuguese, Spanish, French, and Russian. He can be contacted via email at jstewart@fowler-white.com

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.


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