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Wednesday, August 20, 2014

Labor application: Newspaper requirements not applicable to additional recruiting steps

The requirements for newspaper advertising do not apply to the additional recruiting steps for professional occupations under the labor application regulation, according to a recent decision of the labor certification appeal board.  Matter of Symantec Corporation, 2011-PER-01856 (July 30, 2014).

A foreign labor certification is usually required before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  The regulation requires that an employer must advertise the job openings in Sunday newspaper of general circulation for two times. In addition, employer must also fulfill three (3) additional recruiting steps for professional positions.  For example, an employer can post the job opening on an online job search website as an additional step.

In the case at issue, the employer, Symantec, filed a labor application on behalf of a Financial Programmer Analyst.  As one of the additional recruiting steps, they posted the job opening on a job search website. The labor application submitted does not contain any travel requirements.  However, in the job search website posting, it states that the employee may be required to work on projects "at various unanticipated sites throughout the United States."  The Labor Department Certifying Officer (CO) denied the labor application on the basis that the travel requirement posted is an additional requirement not included in the labor application under the regulation.

The employer on motion and appeal explained that the online job posting is for multiple openings, some of which require travel to other places, but the position being offered does not have any travel requirements. Further, the employer argued that the regulation cited by the CO only applied to newspaper advertisements but not in the other additional recruiting steps.  A panel of three appeal board judges agreed with the employer and reversed the denial.  However, the CO petitioned for a rehearing of the case by the whole Board of Alien Labor Certification Appeals (BALCA).

BALCA decided, en banc, that the employer is correct in that the regulation cited by the CO for denying the labor application does not apply to the additional recruiting steps.  The plain language of the regulation states that the additional steps only have to advertise the job opening; it does not impose other requirements. Here the employer did advertise the job opening as required, and the labor application should not be denied based on unwritten requirements in the regulation.  Symantec marks a clear change in direction in the interpretation of the regulation by the BALCA from cases such as East Tennessee State University, 2010-PER-38 (Apr. 18, 2011) (en banc).  It also provides some much-needed guidance regarding the recruiting process of PERM labor application. 

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