Sometimes the Government Does the Right Thing

DOL panel says employer has to interview the citizen applicant in an H-1B case

By David North on September 30, 2022

Every so often part of the federal government does the right thing in an immigration-related case and it should be reported along with its massive failures (e.g., the southern border).

This is a case involving a small user of H-1B workers (two or three a year) in Ohio that wanted to hire a global supply manager from outside the U.S. ERICO International Corp. sought an H-1B worker even though at least one U.S. worker was available who appeared to be qualified for the job.

DoL staff rejected the application on the grounds that an unnamed job candidate, either a citizen or a green card holder, had the needed credentials and should have been considered and was not, according to a LAW360 article.

The employer appealed to one of those obscure appeals tribunals in the immigration business, the Labor Department’s Board of Alien Labor Certification Appeals (BALCA). The panel ruled that the employer, in a case in which the citizen applicant appeared to have the right credentials, should have interviewed him, which it did not do. So the would-be employer lost the case.

This kind of thing should happen more often and with larger-scale employers, but the government did the right thing in this particular instance.

Incidentally, the BALCA decision (2019-PER-00151) — unlike decisions of a comparable entity within USCIS, the Administrative Appeals Office — contains full disclosure of all involved.

We can thank these BALCA panel members for the decision, all ranking administrative law judges: Stephen R. Henley, Paul R. Almanza, and Carrie Bland. We know the name of the employer, the employer’s lawyer (Megan R. Naughton, Esq.), and the foreign worker who was not hired. That person is Vineetha Jayaram, presumably an Indian national.

As I read through the decision I did not see a single redaction, as one routinely encounters in AAO decisions, which contain none of the kinds of information noted above. AAO should be equally forthcoming, but is not.