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.)

Saturday, February 8, 2014

PERM Advertisement: Not every job detail and condition required

The appeals board for labor certification recently issued an important decision regarding the requirements for PERM labor certification recruitment.  According to the Board of Alien Labor Certification Appeals (BALCA), there are different ways for the employer to establish  that it has fulfilled the recruiting requirements through on campus recruiting and campus placement office. Further, posting a descriptive job title, the employer's name, and the means of contacting the employer might be sufficient to apprise potential applicants of the job opportunity.

CO denied PERM labor application
In Matter of Micron Technology, Inc. (2011-PER-02193), the Certifying Officer (CO) denied the employer's labor application for a "Senior Design Verification Engineer" after an audit.  The CO determined that the employer's documentation failed to meet the regulatory requirements regarding the use of on-campus recruiting and campus placement office as additional recruiting steps for this professional position.

Specifically, regarding on-campus recruiting, the CO decided that the employer's failure to provide actual copies of the notice issued or posted for on campus recruiting violates the regulation. Similarly, the employer's failure to produce a copy of the employer’s notice of the job opportunity provided to the campus placement office has also been cited by the CO as a violation of the PERM regulation.

Not every job detail and condition required in PERM ads
The regulation provides that on-campus recruiting “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.” 20 C.F.R. § 656.17(e)(1)(ii)(D). The regulation also states that “the use of a campus placement office can be documented by providing a copy of the employer’s notice of the job opportunity provided to the campus placement office.” 20 C.F.R. § 656.17(e)(1)(G).

An employer can but is not required to use actual copies of the notices of the job opportunity to prove that it has fulfilled these two recruiting requirements.   Here, the employer produced emails and website postings to show that it has ordered and performed these two recruiting activities.

Further, these documents establish that enough information was posted to inform potential job applicants of the job opening.  In fact, the CO accepted that the other ads posted by the employer containing the same information - a descriptive job title, the name of the employer, and the means to contact the employer - as being sufficient to meet the regulatory requirements.

According to the guidance provided by Department of Labor in 2004 regarding PERM regulations, employers are not required to provide every job duty, job requirement, and condition of employment in advertisements, as long as there is a "logical nexus" between the advertisement and the position.  The guidance also states that ads that contain "a descriptive job title, the name of the employer, and the means to contact the employer might be sufficient to apprise potentially qualified applicants of the job opportunity."

Consequently, BALCA reversed the CO's denial and granted labor certification after deciding that the employer did meet the regulatory requirements.







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