BALCA on Travel Requirements and Multi-Position Notices of Filing

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for several “Software Engineer” positions.

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment data.

After reviewing the recruitment data, the CO denied the Labor Application because he believed it violated PERM regulations 20 CFR 656.10 (d)(4) and 656.17(f)(6). The CO stated the Employer’s Notice of Filing (NOF) and other recruitment materials included a travel requirement not listed on the Employer’s ETA Form 9089.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF was used to fulfill multiple positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may be assigned to various unanticipated sites throughout the United States” does not create an obligatory travel condition for all of its job openings. Additionally, the Employer argued that the Department of Labor (DOL) endorsed the use of the phrase “some positions may require travel” in advertisements covering multiple positions, and the phrase “may be assigned to various unanticipated sites throughout the United States” bears no logical or material distinction from the DOL endorsed language.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. He forwarded the case to BALCA for further examination.

After BALCA’s examination of the case, BALCA affirmed the CO’s decision. BALCA believed that “potential job applicants could be confused as to whether the Software Engineer positions had the potential requirement of travel.” BALCA cited the NOF does show it is for multiple positions. However, it does not convey that the travel requirement only pertained to certain positions. There were no contextual cues in the NOF that would signify to a reader that the travel requirement only applied to some of the positions. The Employer in no way differentiated between the various software engineer positions. Accordingly, the phrase “may be assigned to various unanticipated sites” constituted a travel requirement that exceeded the requirements listed in the ETA Form 9089.