A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, July 30, 2013

PERM Ads and Notice of Filing do not have to include language requirement

To meet the regulatory requirements of a permanent foreign labor application (PERM application), an employer does not need to include the language requirement of the job in the pre-filing advertisements and the Notice of Filing, according to a recent decision of the Board of Alien Labor Certification Appeals (BALCA). Matter of Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013).  The Board held that employers only need to include enough details in the ads to apprise U.S. workers of the job opportunity.

Before hiring a foreign national to fill a permanent job opening, a U.S. employer must first test the job market through the labor certification process. To test the job market, the employer must conduct a series of pre-filing recruiting activities including placing advertisements in newspapers and posting a notice at the place of employment. The labor application will only be certified if there is no qualified U.S. worker who is able, ready and willing to take the job.

How much information should be included in the advertisements and Notice of Filing has been a subject of much controversy. The regulation requires that the advertisements must “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 8 CFR § 656.17(f)(3). But it is unclear how much details are required to sufficiently apprise U.S. workers of the job opportunity.

In Matter of Architectural Stone Accents, the employer filed a labor application to sponsor a foreign national in the United states for the permanent professional position of “Production Supervisor”. In the ETA 9089 labor application, the employer specified that the ability to speak Spanish is a job requirement for this position. However, the employer failed to include this language requirement in the Notice of Filing. Consequently, the Certifying Officer (CO) denied certification because the Notice of Filing posted by the employer is deficient pursuant to 20 C.F.R. § 656.17(f)(3). The employer asked for reconsideration, arguing that the regulation does not require that the language requirement be included. Further, omission of the language requirement should actually have encouraged more job applicants to apply. However, the CO declined to reverse the denial. The employer appealed to BALCA.

On appeal, BALCA considered the issue of whether or not the language requirement must be included in the Notice of Filing (and also PERM Ads).  Initially the Board found that the NOF serves two purposes - to recruit U.S. workers, and also to provide a method for others employees and interested persons to provide information to the CO about an employer’s application. Although the requirements (relating to the contents) are similar for both the job advertisements and NOF, there are some slight differences between the two. For example, the rate of pay must be included in the NOF. 20 C.F.R. § 656.10(d).

The Board held Section 656.17(f)(3) does not require that all job requirements be listed on an advertisement. Specifically, the regulation only requires that an advertisement provide enough details “to apprise the U.S. workers of the job opportunity for which certification is sought.” In fact, in a FAQ provided by the Department of Labor’s Employment and Training Administration, it states that “[t]he regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity.”

Hence, BALCA concluded that PERM advertisements and NOF must only be specific enough to apprise the U.S. workers of the job opportunity.  Neither Section 656.10 nor Section 656.17(f) requires that the NOF list every job requirement. In the instant case, the Board examined the NOF and held that the omission of the Spanish language requirement does not violate the regulations, as “overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.”    Therefore, the Board reversed the CO’s decision and certified the employer’s labor application. 

In sum, PERM ads and Notice of Filing generally do not have to include the language requirement of the position.  However, it is conceivable that this general rule does not apply in certain situations.  For example, if an employer is hiring an interpreter or translator, it is expected that the specific language proficiency be included.  Otherwise, the job descriptions would not be specific enough to apprise potential U.S. job seekers of the job opportunity.  

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