BALCA Affirms Denial of Labor Application Where Advertising Required Less than the Actual Requirements in ETA Form 9089

"Employer has violated 20 C.F.R. § 656.17(f)(3) by not specifically  apprising U.S. workers of the job opportunity.    The position advertised to U.S. workers stated a high school diploma was required, while the ETA Form 9089 required more education.[Bachelor's degree]   Employer argues  this would only be an issue if the job advertised to U.S. workers had more stringent requirements than those listed on the ETA Form 9089.    However, that is not what § 656.17(f)(3) requires.  U.S. workers viewed different requirements than those listed on the ETA Form 9089.  Thus, the advertisement was not specific enough to apprise the U.S. worker of the job offered to the foreign worker.    If Employer had informed U.S. workers of the same job requirements which were provided to foreign workers, more U.S. workers may very well have applied.    Some qualified potential U.S.  applicants may have disregarded the advertisement because it did  not require additional education, and may have thought they were overqualified. Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Pixar, 3/29/12)