BALCA Rejects Newspaper HQ as Determinative in Evaluating Area of Intended Employment

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 “Computer Programmer.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because the Employer ran its recruitment advertising in the Arkansas Democrat Gazette, as he believed it was not the newspaper of general circulation for Bentonville, Arkansas. The company was located in Bentonville, AR and the newspaper was headquartered in Little Rock, AR. He believed that the Arkansas Democrat Gazette would not bring replies from available US workers in the area of intended employment.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that “The Arkansas Democrat Gazette is most likely to bring responses from available US workers because it is the most widely circulated newspaper in Bentonville and the most widely circulated Sunday newspaper in all of Arkansas.” They submitted several pieces of evidence to back up their claims including circulation numbers from the Arkansas Democrat Gazette and Mondo Times website. One of these documents stated there is no other newspaper in Bentonville, AR.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. He thought the 200 mile commuting distance between the area of intended employment, Bentonville, AR, and the newspaper’s headquarters in Little Rock, AR could not be considered normal. The CO assumed the Employer should have posted ads in a newspaper within closer proximity to Bentonville.

The Employer filed an appeal to BALCA. They had clearly obeyed PERM regulations by placing two different Sunday advertisements in a newspaper of general circulation in the area of intended employment.

After BALCA’s examination of the case, the CO’s decision was reversed. The Board believed the CO did not interpret the regulations correctly. They cited the PERM regulations do not state the newspaper’s business address has to be within commuting distance of the job location.