BALCA Issues Decision Concerning Documentation of Website Posting

The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the evidence required to demonstrate that an employer posted a position on their website as part of its recruitment efforts for labor certification. In Matter of DGN Technologies, Inc., the employer sponsored the position of “Computer and Information Systems Manager.” The case was audited and the employer responded with documentation that included a job posting on its website with an illegible handwritten notation of the date of posting and a signed recruitment report. The Certifying Officer denied the case on the basis that the employer failed to provide adequate documentation to show that the position was posted on its website as required by the federal regulations. BALCA reviewed the federal regulations at 20 C.F.R. § 656.17(e)(1)(ii)(B) and noted that postings on websites can “be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” However, it also stated that this form of recruitment could be established through “provid[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][ing] an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under the penalty of perjury, to the posting of the job.” Unfortunately, the recruitment report did not indicate that the signatory was responsible for posting positions on the employer’s website and the statements were not attested to under penalty of perjury. Consequently, BALCA upheld the denial. While this case does provide support for the idea that employers may be able to demonstrate that they validly posted a position on their website with documentation that is different than what is specified in the regulations, employers should still be careful to make dated copies of the website posting to avoid any possible denials.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Leave a comment

Your email address will not be published. Required fields are marked *