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BALCA Clarifies Advertising Content Requirements for PERMs

An employer seeking permanent employment certification for a prospective employee is prohibited from inserting job requirements or duties into newspaper advertisements or professional journals which exceed those appearing on ETA Form 9089. But does an employer violate the Department of Labor (DOL) regulations by including an additional job requirement in an advertisement placed on a job search website which was not listed on the ETA Form 9089?

That was the issue presented by Symantec’s recent appeal of a denial by DOL’s Certifying Officer (“CO”) of Symantec’s Application for Permanent Employment Certification (PERM) for the position of “Financial Programmer Analyst.”

Symantec placed an advertisement on a job search website for the position of Financial Programmer Analyst which included the phrase “[m]ay be required to be available at various, unanticipated sites throughout the United States.” The CO took the position that the phrase created a requirement for travel as a condition of employment. In the eyes of the CO, the job opportunity was not open and available because the language in question had the impermissible effect of deterring otherwise qualified U.S. workers from applying. The CO was concerned that some potential applicants might rule out a job which required them to travel.

Symantec argued that the phrase did not indicate a requirement for travel since it applied to some but not all of the positions covered by the advertisement. Symantec also asserted that the advertising content requirements of 20 C.F.R. section 656.17(f) could not be read into the additional requirement steps set forth in section 656.17(e)(1)(ii).

The Board of Alien Labor Certification Appeals (BALCA) examined the relevant regulations, focusing especially on the language of 20 C.F.R. Sections 656.17(f) and 656.17(e)(1)(ii), as well as other BALCA decisions, and concluded that while section 656.17(f) prohibited inclusion of excessive job requirements in newspapers and professional journals, the advertising content requirements contained in section 656.17(f) did not apply to advertisements placed on job search websites.

Accordingly, BALCA reversed the CO’s denial of labor certification and directed the CO to grant Symantec’s application for labor certification.

Timothy D. Widman is aSan Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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