BALCA upholds denial of Labor Certification – Employer failed to adequately document employer website advertisement

Posted On: June 29, 2010

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of social work, “Case Manager."

The employer filed a LC which was accepted for processing on August 15, 2007. ETA Form 9089 indicated that the job had been advertised in the Baltimore Sun on 4/8/2007 and 4/15/2007, and posted on the employer’s website from 4/24/2007 to 05/08/2007. The CO issued an Audit Notification requesting among other things, the Employer’s recruitment documentation. The Employer responded by providing copies of original tear sheets, a printout from the Employer’s website, the Employer’s recruitment report, and two statements, one from the Employer’s Attorney and the other from the HR Vice President. The newspaper tear sheets consisted of two parts: (1) almost full facsimiles of classified pages dated 4/8/2007 and 4/15/2007 which were not legible and had the top and bottom cut off, but bear the publication date; and (2) enlargements of the advertisements specific to the Employer’s application, but only the 4/8/2007 enlargement specifically bore the date of publication and name of publication. Additionally, the employer’s printout of its company website posting did not indicate the dates of posting. Thereafter the CO issued a denial letter because the original tear sheets were not provided and the employer failed to provide dated copies of pages from the company website. The Employer thereafter requested reconsideration arguing that the tear sheets had been provided and were sufficient proof of publication under the regulations. It also argued that alternative evidence of web site posting was sufficient according to a “FAQ” posted by the OFLC. The CO issued a letter of reconsideration establishing that the denial was valid because the enlargement did not show the date of publication or the name of the newspaper used, and the employer failed to provide dated copies of its web posting.

PERM Regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment steps an employer can utilize to advertise a professional occupation is to advertise the position on its own website. For an employer that advertises by posting the job opportunity on its own website, the advertisement “can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” Furthermore, the OFLC website includes a response to a Frequently Asked Question (FAQ) stating that if an employer does not have a copy o the posting from its website, “the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under penalty of perjury, to the posting of the job.” However, the FAQ states that such a submission does not guarantee that the CO will find such a submission to be adequate documentation of the posting on the website. In the present case, the statements of the Attorney and HR Vice President included with the audit response were not in affidavit form, nor attested to, and therefore could not be considered.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Matter of PSI Family Services, Inc.

*Over the past several months more and more labor certification cases have been denied for basic technical errors. It seems times have changed as they are interpreting the literal meaning of the regulations, denying cases on mere technicalities, the majority of which displayed no harm to the recruitment process/test of the U.S Labor market.

As a word of advice, do not engage in the PERM process alone, contact an Experienced Immigration Attorney to guide you through the process, so that your cases do not result in denials after all of the money and time you have invested in the process.