Must an employer seeking permanent alien labor certification on behalf of an employee who will have the option of living rent-free at the site of employment advertise this aspect of the position to prospective U.S. job applicants? The answer appears to be “yes.” In the recent decision of In the Matter of Needham-Betz Thoroughbreds, Inc., 2011-per-01104 (December 31, 2014), the Board of Alien Labor Certification Appeals (BALCA) affirmed the Certifying Officer’s (CO) denial of a Labor Certification Application for the position of “Farm Manager.”
The employer in this case owned a horse farm. It desired certification of the position of “Farm Manager” so its foreign national employee could qualify for a green card based on the employer’s testing the labor market to prove that no willing, able and qualified U.S. worker was available for the position. The CO denied the labor certification application on the ground that since the employer’s advertisements for the position failed to mention the option of living at the establishment without paying rent, the terms and conditions of employment offered to the foreign national were more favorable than those advertised to potential job applicants, in violation of the PERM regulations. The employer maintained that it was not required to advertise all “beneficial aspects” of the position.
The employer further attempted to distinguish other BALCA cases, including Emma Willard School, 2010-PER-01101 (Sept. 28, 2011), in which BALCA held that an employer’s failure to advertise subsidized school housing as part of its recruitment efforts did not foreclose the job opportunity to potentially qualified American workers.
Relying on Blue Ridge Erectors, Inc., 210-PER-00997 (July 28, 2011) and Phillip Dutton Eventing, LLC, 2012-PER-00497 (Nov. 24, 2014), BALCA agreed with the CO, finding that the option of living at the horse farm was a term and condition of employment. In BALCA’s view, some persons might be more likely to apply for the job if they understood that housing was included, because they would consider employer-provided housing to constitute a favorable economic benefit of employment. Furthermore, in BALCA’s estimation, no potential job applicant would assume that the job offer included free housing as a benefit of employment. Since the employer’s advertisements and Notice of Filing did not specify the availability of such no-cost, on-site housing, the job opportunity was not truly tested in the job market, and labor certification was properly denied.
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