Last year, BALCA released an en banc decision in Symantec Corp, 2011-PER-01856 (July 30, 2014), finding that advertisements placed to comply with the PERM additional recruitment steps did not need to comply with the content requirements found for mandatory advertisements (newspaper advertisement). For background information, please visit my previous blog post: BALCA is Fair, Who Knew?! 

In a recent decision, Matter of Computer Sciences Corp., 2012-PER-00642 (July 09, 2015), BALCA applied Symantec Corp. to reverse the Certifying Officer’s denial of the PERM application. In this case, the Employer received an audit notification to which it responded with all required documentation. The CO noticed that the language, “Willingness to travel; may require work from home office” was included on the additional recruitment advertisements posted on the Employer’s company website and on a job search website, but was not included on ETA Form 9089 (PERM form). The CO denied certification of the PERM application and cited to 20 CFR § 656.17(f)(6) as the authority for denial. This portion of the regulation states that advertisements must “not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.” Basically, the CO is saying that the Employer’s company website and job search advertisement contained travel/work requirements that exceeded the requirements placed for the beneficiary on ETA Form 9089. 

As explained in my previous post, before a PERM application can be certified, certain recruitment efforts must take place. For applications involving professional occupations, mandatory recruitment steps must be completed in addition to 3 additional steps from a list of 10 possible advertising mediums. The mandatory recruitment steps include the placement of two Sunday newspaper ads and this ad content is bound by the requirements found at 20 CFR §656.17(f), which states:

(f) Advertising requirements: Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must:

(1) Name the employer;

(2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer;

(3) Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought;

(4) Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity;

(5) Not contain a wage rate lower than the prevailing wage rate;

(6) Not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089; and

(7) Not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

As you can see, the advertisement requirements specified above apply only to the mandatory newspaper advertisements and in fact are only cross-referenced in the requirements listed for the Notice of Filing (Please see previous blog post for full explanation: BALCA is Fair, Who Knew?!). Nowhere in the PERM regulations does it specify these requirements also apply to the additional recruitment steps.

Therefore, in Computer Science Corp, BALCA explained that the Employer’s company website and job search website postings are not bound by the restrictions above (unlike the mandatory advertisements). Because those efforts are not bound by that regulation, BALCA reversed the CO’s denial and directed the CO to approve labor certification.

I’m glad to see another win for employers on this one!  But, you must keep in mind that even though the additional forms of recruitment do not have to comply with the requirements of 20 CFR § 656.17(f) it is still important that information on the additional recruitment efforts include the information provided on ETA Form 9089 because a failure to do so can indicate bad faith recruitment. Further, the Certifying Officer can always issue supervised recruitment where they feel necessary.