The Board of Alien Labor Certification Appeals (“BALCA”) recently affirmed that the content requirements that are specified in the federal regulations for newspaper advertisements in 20 C.F.R. § 656.17(f) do not pertain to state workforce agency job orders. The employer submitted a labor certification for the position of “computer software engineers, systems software” and specified in the Form 9089 that the position required five years of experience. The case was audited and denied because the job order that the employer provided stated that the position had an experience requirement of “greater than 5 years.” The employer appealed the decision and noted that the Illinois state workforce agency job order site only provided a set number of experience options that included “3-5 years” and “greater than 5 years.” The employer stated that it choose the option of “greater than five years because it was the most appropriate since ‘3-5 years’ was not an accurate reflection of tis experience requirement.” BALCA reviewed Matter of Chabad Lubavitch Center, 2011-PER-2614, and noted that the requirements of 20 C.F.R. § 656.17(f) only apply to “advertisements placed in newspapers of general circulation or in professional journals.” BALCA also found that the federal regulations that govern job orders are silent in regards to whether the content requirements of 20 C.F.R. § 656.17(f) apply to job orders, which lead it to believe that the Department of Labor “did not intend to impose these content requirements on all types of advertisements.” Many state workforce agencies provide limited options in regards what can be selected for experience requirements. This case instructs the DOL that it may not deny cases when the state workforce agency fails to allow employers to specify the exact requirements of the position.
The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that the notice of filing that must be posted before a labor certification is eligible to be filed is not required to list every job duty and requirement of a position that is being sponsored. In Matter of Eteam, Inc., the employer sponsored the position of “Programmer Analyst.” On the Form 9089, the employer specified that the position required a master’s degree in Computer Science or Engineering and one graduate course in database management and network security. This post-secondary education must have included software development using Unix and Perl. The case was audited and the employer submitted a notice of filing that did not state the education requirement or the coursework requirement of this position. The Certifying Officer denied the case on this basis. The case was appealed. BALCA reviewed a prior case, Architectural Stone Accents, Inc., which held that the federal regulations that govern notice of filings do not require every job requirement to be listed. While BALCA reiterated that notice of filings play an important role in ensuring that employees can provide information to a Certifying Officer about an employer’s application, it reiterated that the federal regulations “only require the [notice of filing] to contain information specific enough to apprise the U.S. workers of the job opportunity. The Employment and Training Administration did not write a regulation that mandates the employer list specific job requirements in a [notice of filing].” Consequently, BALCA determined that the notice of filing offered by the employer in this case was sufficiently detailed to inform U.S. workers of the job opportunity and overturned the decision. This case provides critical information about the content requirements of notice of filings.
The Department of State (DOS) recently released the May visa bulletin. There were no changes to the “dates of filing” chart. The movement of the dates in the “final action chart” was disappointing. Many categories did not progress at all. The DOS warned that the pattern of downgrades from EB2 to EB3 by Chinese nationals has resulted in no movement for that category which may last through the remainder of the fiscal year.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether advertisements that constitute part of the additional recruitment steps for a labor certification case must identify the job location. In Matter of Screen Printers Resource, Inc., the employer submitted a labor certification for the position of “International Sales and Service Business Development.” The case was audited and, ultimately, denied because the Certifying Officer (“CO”) determined that the employer’s website posting did not list the job location. The CO argued that U.S. workers may be unwilling to apply for a position that did not list a job location. BALCA reviewed Matter of Symantec Corp., which found that the advertisement content requirements that are imposed on newspapers of general circulation are not applicable to the additional recruitment steps. These additional steps must only advertise the occupation involved in the petition and may be “broadly worded.” BALCA reviewed the employer’s advertisement and stated that it “described the title of the job, the responsibilities of the job, the educational, work experience, and knowledge requirements of the job, and where the applicant could email or fax a resume.” While BALCA stated that the advertisement was “not detailed, it is not misleading.” Consequently, the denial was overturned. This case further confirms that the advertisements placed as part of the additional recruitment steps that are conducted in the PERM process do not have to be as detailed as those placed in a newspaper of general circulation.
Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether dated screenshots and a CD with an audio recording of a radio advertisement constituted sufficient proof to establish that these additional recruitment steps occurred as part of the PERM process. In Matter of Waldorf School of Orange County, the employer submitted a labor certification case for the position of “Teacher.” The case was audited and the employer provided screenshots from its website that included the date and time to establish that it had posted the position on its website. The employer also provided a CD that included an audio copy of the posted advertisement that was placed on the radio and the broadcast contract. The Certifying Officer (“CO”) denied the case on the basis that screenshots did not constitute dated copies of the website posting as required under the law. The CO also stated that the employer failed to provide a copy of the text of the radio advertisement. BALCA reviewed the denial and reiterated that the “documentation requirement [for website postings] should be read with a degree of flexibility.” BALCA determined that screenshots are “dated copies” of the posting on the employer’s website and that an employer “need not submit a written text of a radio advertisement.” Rather, an audio recording is sufficient proof of the text of the advertisement that was carried on a radio station. Consequently, this denial was overturned. This case provides helpful information about how employers can document postings on their website and on radio stations to establish that they conducted the additional recruitment steps that are required as part of the labor certification process.
The Department of State (DOS) has released the April Visa Bulletin There were no surprises. The “dates for filing” chart remained unchanged and the “final action dates” saw forward movement at a pace similar to past months. With only 5 months left in the fiscal year, several of the EB3 categories need to pick up the pace to arrive at the “file date” by Oct 1st.
BALCA Reverses Denial Based Upon Failure to Include Travel Requirements in Job Order and Job Search Website
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in Matter of First Tek Technologies, Inc. that reiterated that job orders and advertisements conducted to fulfill the additional recruitment steps for a labor certification case are not subject to the advertisement content requirements specified in 20 C.F.R. § 656.17(f). The employer filed an Application for Permanent Employment Certification for the role of “Programmer / Analyst.” The case was audited and the Certifying Officer (“CO”) denied the case on the basis that the employer’s job order and the advertisement conducted through a job search website “did not include a travel requirements listed on the ETA Form 9089.” The CO cited 20 C.F.R. § 656.17(f) as the basis for the denial. 20 C.F.R. § 656.17(f) applies to “advertisements placed in newspapers of general circulation [and] professional journals.” In reviewing prior case history, BALCA determined that the Matter of Chabad Lubavitch Center and Matter of Symatec Corporation cases established that job orders and advertisements conducted to fulfill the additional recruitment steps are not required to “comply with the detailed content requirements of section 656.17(f).” Thus, the denial was overturned. The content requirements for the advertisements that are conducted as part of a recruitment effort for a labor certification case involve many nuances. The Hammond Law Group is happy to assist employers in drafting appropriate advertisements that meet the Department of Labor’s requirements.
The Department of State released the March Visa Bulletin. The dates for filing chart saw the EB3 all other category move to “current”. All other categories remained the same. On the priority date chart now called the final action chart, steady movement across multiple categories continued.
The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned the denial of a labor certification case that was submitted through the mail on the basis that the employer’s signature on the labor certification established that it was sponsoring the foreign worker. In Matter of La Hacienda Meat Market, Inc., the employer submitted a labor certification for the position of “Buyer / Produce.” The employer mailed the ETA Form 9089 to the Department of Labor because the employer was unable to pre-register electronically with the Atlanta National Processing Center. The mailed-in labor certification included a signature from the President of La Hacienda Meat Market in the employer’s declaration section. The Certifying Officer attempted to contact the employer three times by telephone to confirm sponsorship, but was unable to reach anyone. Consequently, the case was denied. BALCA reviewed the decisions of a number of cases that involved similar fact patterns and determined that “when an ETA Form 9089 is submitted via mail and includes the employer’s sworn statement under penalty of perjury certifying as to the conditions of employment offered, sponsorship is adequately verified.” Thus, the denial was overturned. While it is preferable to submit a labor certification through the online system, this case provides guidance that establishes that an employer’s signature on the ETA Form 9089 is sufficient to confirm sponsorship.