BALCA Issues Decision Discussing the Use of a Single Newspaper for Multiple Recruitment Steps

On April 24, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) discussed whether or not advertisements in one newspaper could count as multiple recruitment steps. In Matter of Delta Search Labs, Inc., the employer sponsored the position of “marketing manager.” As part of its recruitment effort, it placed two Sunday advertisements in the Boston Globe. It also listed the position opening in the Boston Globe during the week. The employer argued that the advertisement placed during the week should count as recruitment in a local newspaper. The case was selected for audit and the Certifying Officer (“CO”) denied it on the basis that the employer had replicated a previously used recruitment step through placing a weekday advertisement in the same newspaper that the mandatory Sunday advertisements ran. The employer requested that the CO’s decision be reconsidered and submitted substantial evidence that showed that the weekday editions of the Boston Globe reaches a different population than the Sunday edition and has higher circulation numbers than any of its local competitors. Consequently, the employer argued that a weekday advertisement in the Boston Globe was the most appropriate medium to attract able, willing, and qualified candidates. In reviewing the case, BALCA stated that the Office of Foreign Labor Certification’s FAQ’s on PERM do not “address the issue of whether one publication could, based on its daily and weekend circulation figures, serve as both a local and general circulation publication.” Furthermore, BALCA also found that the regulations “do not specifically prohibit an employer from using the same newspaper as both a newspaper of general circulation and a local or ethnic newspaper, provided the newspaper satisfies both categories.” Consequently, the CO’s decision was reversed.  While this case provides support for the idea that a newspaper could appropriately be used as a local newspaper and as a newspaper of general circulation, BALCA found support to reverse this decision in the fact that the CO did not make a determination about whether the Boston Globe could count as a local newspaper and a newspaper of general circulation. Employers who are considering using advertisements in one newspaper to fulfill the mandatory recruitment steps and as a local newspaper must carefully document why they believe that the newspaper meets both criteria.

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