BALCA on Documenting Recruitment from the Employer’s Website

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Computer & Information Systems Manager.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded to the Audit, the CO denied certification of the application for failing “to respond to the audit notification within the required time.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer submitted its audit response documentation that included a copy of its job posting from its website with an unreadable handwritten note displaying the dates of posting. In addition, the recruitment report signed by the Company’s President was submitted. In the report, the time frame for the job posting on the employer’s website was listed as November 30 to December 30, 2008.

Once again, the CO delivered a denial of the labor application. He believed the Employer did not provide sufficient documentation of its website job posting. It violated PERM regulations 20 CFR 656.17 (e)(1)(ii)(B). This regulation requires Employers to “provide dated copies of pages from its website that advertise the occupation involved in the application.”

The Employer sent a second reconsideration request. This time, they included a letter from the Company’s President affirming he was the one who posted the position on the website. The CO responded that the letter from the President was not a sworn statement and it was considered new evidence. He forwarded the case to BALCA for review.

After BALCA’s examination of the case, they sided with the CO. Regulation 20 C.F.R. 656.24(g)(2), limits the type of evidence that can accompany a motion for reconsideration. The Board held that the letter submitted by the Employer did not meet the criteria as listed in 20 C.F.R. 656.24(g)(2). BALCA affirmed the denial of the labor application.