BALCA Rejects CO’s Strict Specifications for Ad Copies

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Home Health Care Aide”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide more information about their print advertising for the job.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation for the mandatory print advertisements. The Employer did not provide copies of the advertisement that contained both the name of the newspaper as well as the date of publication, He cited the Employer was in violation of PERM regulation 20 C.F.R. 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C).

PERM regulation 20 C.F.R. 656.17 (e)(2)(ii) requires that the newspaper advertisements must be placed on two separate Sundays. This is to ensure US workers can be provided the opportunity to apply for these positions.

The Employer requested BALCA review proclaiming that it submitted proper evidence in its Audit Response. The Employer submitted two pages of newspaper copies in its audit response. One of the pages shows the advertising text and the other page displays the name of the newspaper and the date. The Employer also presented screen shots from the newspaper’s online web page.

After BALCA’s examination of the case, the case was sent back to the CO for further examination. Even though the advertising content does not seem to fulfill the PERM regulations at 656.17 (f), they believed the copies of the newspaper pages as well as the screenshots satisfied the obligation for the recruitment phase. The Board gave the CO “instructions to consider whether the content of the Employer’s newspaper advertisement satisfies the requirements of 656.17(f).” This PERM regulation expects the newspaper ad to contain the name of the employer, location & a specific description of the job. The Employer’s ad did not name the employer, location or provide a detailed description of the position.