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.)

Thursday, March 17, 2016

Travel and GPA Requirements in Employer Website Posting Do Not Violate Labor Cert Regulation

The Certifying Officer (CO) denied certification of a labor application filed by an employer who was seeking to hire an "Electrical Design Engineer" after an audit.  In Matter of Stryker Medical, 2012-PER-01776 (Mar. 11, 2016), the employer's website advertisement for the position contained a travel requirement of 10% and stated a GPA of 3.0 or higher was preferred.  Such requirements are not listed in the ETA Form 9089 labor application.  Citing 20 C.F.R. § 656.17(f)(7), the CO determined that the Employer’s website advertisement included "more stringent requirements" than those listed in the labor application form.  On appeal, BALCA reversed the denial, citing Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc),  which held that the language of § 656.17(f) only applies to advertisements in newspapers or professional journals.

This case is one of a series of similar BALCA holdings on this very issue.  See, e.g., Matter of Pinnacle Technical Services, and Matter of Bahwan Cybertek Inc.  Before these decisions, many labor applications were denied on some minor technical grounds pursuant to § 656.17(f). These rulings will make PERM labor application recruiting a step closer to real world recruiting.   

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