BALCA Says Link to HotJobs Is Not the Same as Posting the Job on 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 “Assistant Sports Editor, Al Dia.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. He asked the employer to provide documentation of their recruitment process. The Employer submitted copies of print and online job ads. However, the response did not contain any printouts from the employer’s own website.

The CO denied the application declaring that the Employer failed to deliver sufficient documentation to show the Employer used its own website to advertise the job. The Employer did not provide pages from their website that contained the dates the ads were posted online. In addition, the CO believed the Employer unlawfully rejected some US Applicants.

The Employer submitted a reconsideration request proclaiming that “it’s rejection of US job applicants was lawful.” In response to the CO’s claim that it did not advertise on its own website, the Employer submitted pages from Yahoo’s Hot Jobs. These pages showed evidence that the company used both their own website and HotJobs.com to advertise the position. In other words, the employer attempted to use one job posting to satisfy two of the requisite three steps required for professional occupations.

Upon receiving the Employer’s request, the CO requested more information on the rejected US workers. Upon reviewing the additional documentation, the CO declared that the Employer had not unlawfully rejected the US workers; however, he once again denied labor certification. The CO believed the Employer did not sufficiently document the website postings. He forwarded the case to BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Employer did not conduct the three additional recruitment steps required for professional occupations. Specifically, they needed to actually advertise the job on their website and not just send applicants to another website to review the job opportunity. They could have chosen another recruitment option from the list of ten.

Note: Yahoo’s Hot Jobs website no longer exists!