BALCA Discusses Advertisements Placed by Private Employment Firms

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for the position of “Latin American Refining Prospect Director.”

An Audit Notification was issued by the CO to the Employer requesting them to submit its recruitment documentation. A response to the request was submitted by the Employer. The Employer stated that it conducted three additional steps in its recruitment process, including listing the job opportunity with a private employment firm. In the response, they explained they were unable to find applicants and received zero resumes that met the minimum qualifications for the position. The job requirements were a Master’s Degree in Business Administration or Chemical Engineering and 10 years of experience in the position or a managerial/executive position in the petroleum/refining industry. In its response, the Employer also submitted a copy of the Recruiting Firms’ advertisement. The ad included an extensive job description, educational & experience requirements as well as the location of the job opportunity. However, the advertisement did not mention the company by name.

The CO stood by his original decision citing the Employer failed to provide adequate documentation of its recruitment through the Recruiting Firm. In addition, the recruiting firm failed to identify the name of the Employer in its advertisements. The CO cited 20 C.F.R. & 656.10(c). It provides “the employer to attest that the job opportunity has been and is clearly open to U.S. workers.” In addition, the CO listed 20 C.F.R. & 656.17(f) (1) for the regulatory bases for denial. It “requires that advertisements name the employer.”

The Employer requested reconsideration of the case stating his company hired a private employment firm to handle recruitment of the position. It is the employment agency’s policy to omit the name of the employer in all advertisements.

After reviewing the case, the CO again denied the Employer’s application. The CO stated it was necessary for an employer’s name to be included in all job advertisements to ensure the employer’s test of the labor market was legitimate. He cited 69 Fed. Reg 77326, 77248,”advertisements naming the employer are more likely to represent bona fide openings or vacancies.”

The Employer filed an appeal with BALCA. In the appellate brief, the Employer argued that if a company is listed in an advertisement, the applicant may decide to bypass the employment firm and contact the employer directly. This would defeat the purpose of using a recruiter in the first place. For this appeal, the CO filed a statement of position arguing that “without the inclusion of all the content requirements in Section 656.17(f), including an employer’s name, the greatest number of able, willing, qualified, and available US workers will not be apprised of the job opportunity.” Since the Employer’s name was not listed in the advertisement, the CO’s ability to verify the availability of US workers was flawed.

After reviewing the case, the BALCA panel ordered that the CO’s determination to be reversed. They granted Labor Certification to the Employer based on several facts. First, they believed that the placement agency’s advertisement provided a lengthy description of the job opportunity; title, job location; as well as the educational & experience requirements for this job. In addition, the Employer provided evidence to show “blind advertisements are the usual method by which a private employment firm advertises a job.”