BALCA Panel Disagrees with Credit Suisse Holding on Ad Requirements

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 “Financial Programmer Analyst.”

Upon reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit Notification and required the Employer to submit further documentation.

After looking through the documents, the CO denied the Labor Certification because he believed the Employer violated PERM regulation 20 CFR 656.17(f) (6). The CO stated the Employer’s advertisement posted on a job search website listed a travel requirement not listed on the Employer’s ETA Form 9089.

The Employer requested reconsideration. In its request, they argued that the requirements in the PERM regulation do not apply to additional recruitment steps; they apply only to advertisements placed in newspapers and professional journals. The Employer quoted the regulation’s Preamble which states “additional recruitment steps need only advertise the occupation involved in the application and not the specific job opportunity.” In addition, the Employer claimed the web advertisement was for multiple open positions and contained the word “may”, so the particular position in question may or may not have had a travel requirement.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO forwarded the case to BALCA. In his statement of position, the CO referred to the Employer’s lack of clarity in the advertisements. He believed the term “may require travel” could deter US workers from applying for this position.

After BALCA’s examination of the case, the administrative judge reversed the CO’s decision. Section 656.17(f) applies only to “advertisements placed in newspapers of general circulation or in professional journals”. Advertisements placed to satisfy the additional recruitment steps, including advertisements placed on a job search website, do not fall within these two enumerated categories of advertisements. The Board stated that if the ETA did in fact intend Section 656.17(f) to apply to additional recruitment steps, it could amend the regulations to expressly state so. In conclusion, the board held that based on the plain language of the regulations, combined with the regulatory history, the advertising content requirements of section 656.17(f) DO NOT apply to the additional recruitment steps found in Section 656.17(e)(1)(ii). Accordingly, the case was returned to the CO with an order to grant certification.