En Banc Panel of BALCA Reverses CO’s Denial on Advertising Content Requirements for Additional Recruitment Steps
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the content requirements of advertisements that are placed as part of the additional recruitment steps in labor certification. In Matter of Symantec Corporation, the employer chose to place an advertisement on a job search website as one of the three additional recruitment steps that are required in the labor certification process for professional occupations. The Certifying Officer (“CO”) denied the case on the basis that this advertisement included a travel requirement that was not listed on the ETA 9089. Specifically, the advertisement stated that the individual filling the role “may be required to work . . . at various unanticipated sites throughout the United States.” The CO stated that this violated provisions of the federal regulations that discuss the content requirements for the mandatory recruitment steps and referenced Credit Suisse Securities (USA) LLC for support of the idea that the advertising content requirements of the additional recruitment steps must match those that are demanded of the mandatory recruitment steps. After receiving a request from the CO, an en banc panel of BALCA reviewed the case and determined that the content requirements for the mandatory recruitment steps are not imposed on the additional recruitment steps. Specifically, this en banc panel reviewed the relevant regulations and found that they were silent on specific content requirements for the additional recruitment steps. Consequently, it found that the Department of Labor (“DOL”) “did not intend to impose these content requirements on all types of advertisements.” Instead, employers must only advertise “the occupation involved in the application” in the additional recruitment steps, not the “job opportunity.” Finally, BALCA reminded the DOL that a “CO may not deny a [PERM application] based on a petitioning employer’s failure to comply with an unwritten requirement that has no basis in the clear text of the regulations.” The Hammond Law Group applauds BALCA for clarifying the advertisement content requirements of the additional recruitment steps and for this well-reasoned decision.