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.)

Monday, January 26, 2015

Housing benefits must be announced in labor application ads and notices

If an employer provides housing benefits such as free housing to employees in a job opportunity, such benefits must be announced in the job notices and advertisements in order to fulfill the regulatory requirements for a foreign worker's permanent employment labor certification, according to a recent decision by the Board of Alien Labor Certification Appeals (BALCA).(Matter of Needham-Betz Thoroughbreds, Inc., 12/31/14)  Labor certification is a prerequisite requirement for most employment-based green card applications.

Labor application denied because ads did not disclose free housing
Needham-Betz involves a labor application filed by an employer for the position of a "farm manager." The job site is a horse farm.  The employer offers its employees to live, rent-free, on-site at the farm as an option.  The foreign worker here did take advantage of this housing benefit.  In denying the case, the Certifying Officer reasoned that free housing is a major convenience and cost-saving incentive for a worker to take a job.  If this benefit was included in the job notices and advertisements, some potential U.S. workers who were not otherwise interested in the position might have applied.  According to the CO, the employer offered terms and conditions of employment that were less favorable than those offered to the alien" in violation of 20 C.F.R. § 656.17(f)(7). 

Emma Willard School - same benefit, different outcome
The employer appealed the denial to BALCA the appeal board, making two arguments.  First, the employer relies on another decision of BALCA - Emma Willard School, 2010-PER-01101 (Sept. 28, 2011).  Similar to the instant case, Emma's employer is a boarding school which offers free housing to most employees and teachers.  A BALCA panel of three judges in that case held that the employer’s failure to indicate the availability of employer-subsidized housing in its advertisements did not violate section 656.17(f)(7).  However, in the instant case, the Needham-Betz board (a panel of three different judges) did not find Emma controlling because Emma was not decided by the whole board (en banc).

What about the ETA's FAQs?
The employer also pointed out that one of the FAQs issued by Labor Department's Employment and Training Administration had indicated that "not every duty, requirement and condition of employment needs to be included in advertisements."  Hence, the employer argued that their failure to include the housing benefit should not be used as the reason for denial.  BALCA, again, did not accept this argument.  Although not all job benefits need to be advertised, the Board distinguishes free housing from other benefits: "Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days."  The Board agreed with the CO that the benefit of free housing was so substantial that it should have been announced so that potential U.S. job seekers could have taken that into consideration. 

U.S. workers and foreigners must be treated equally
This decision is another example of how the Board interpreted section 656.17(f)(7). This section prohibits employers for offering terms and conditions of employment less favorable than those offered to the foreign national.  The idea is to treat U.S. workers and foreign workers equally and fairly.   Employers are not required to list all the job requirements, duties, conditions in the job postings but only those that  are unusual and would tend to influence job seekers' decisions.  

Better safe than sorry
However, it is sometimes difficult to decide what must be included.  For example, the Emma Board panel approved certification although the benefit of free housing was not posted, whereas in the instance case, a different Board panel in Needham-Betz held the other way.  It is possible that new decisions will come down on this vary issue.  But as prudent advisers to our clients, we always prepare PERM labor application defensively, and advise clients to include unusual requirements (on-call, travel, relocation, etc.) and benefits (housing, telecommuting, home office, etc.) in job postings and advertisements.  At the end,  when a PERM labor application is denied, regardless of whether we are right or wrong on the law, it would still cause substantial delay in the green card application process.  

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