Bloggings on on PERM Labor Certification
by Joel Stewart
Recently an attorney asked about a job applicant who was not immediately available to work for an employer.
The statute says that job applicants must be qualified, available, willing and able to accept the offer of employment.
In these difficult times, many persons are out of work, actively looking for a job and are therefore immediately available to work, but others are currently employed in a different position and, even though they apply for a new job, do not really want to leave their current place of work.
Obviously the fact that a seemingly qualified person submits a resume for a job does not mean that the person is also available, willing and able to work.
I recall a case many years ago where an applicant applied from out of state. Her resume indicated that she might be qualified. The Employer interviewed her by phone, because the applicant could not be expected to come for a personal interview at her own expense.
Although the applicant seemed qualified, interested and able to perform the job, an question arose as to her availability. Although she stated she wanted a new job, she also indicated that she might not be able to accept an offer out of state at that time.
The Employer's position was open to an available worker, but was this worker available?
I suggested that the Employer just offer the job to the worker and ask her to report for work the following Monday. Confronted with the challenge of a real, immediate job opportunity, the applicant refused to report for work and stated on the record that she was not really "available" to work at that time and refused the job offer.
Why would someone apply for a job if he or she does not really want to work? The answers to this question are beyond the scope of this article and probably require the opinion of a psychologist to understand, however, it is well known that many persons consider a job application as an opportunity to test his or her worth, to interact in the application process and to obtain an evaluation of ability or competency in the marketplace from an independent person, such as an employer.
The law does not state what time period should be given to an applicant to report for work, but if the applicant needs to give notice to a current employer, that might be taken into consideration -- perhaps two weeks in most cases, perhaps longer.
In actual fact, a worker who is already employed but wants to apply for a new position is in a difficult situation. The worker may not be sure that he or she would like the new position, which is an unknown set of values, and may be reluctant to give up a current job.
Employers should normally require references or confirmation of employment and good conduct at jobs previously held by applicants. Consequently, the prospective employer will need to communicate with the applicant's current employer to determine that the applicant is truly qualified. If the applicant does not want a current employer to be contacted, this would constitute failure to cooperate with the new employer's hiring policies.
In the final analysis the amount of time in which a job applicant who is currently employed and therefore unavailable, but may become available by leaving the current job, is not fixed in stone and must be evaluated on a case by case basis.
Employers should never forget that they have the burden to show the Department of Labor that the job opportunity is truly open to US workers, so when workers apply, they should be given a fair and reasonable opportunity to make themselves available.
Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. 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 has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.