Mr. Lee's Article - "Important Developments in Labor Certification Applications, Part I" as published in World Journal on March 6, 2011By Alan Lee, Esq.† Significant issues in labor certification processing were touched upon in recent decisions of the Board of Alien Labor Certification Appeals ("BALCA" or "Board") and the Department of Labor ("DOL") Stakeholders Meeting on October 28, 2010. BALCA and DOL gave answers to what forms of recruitment are considered advertisements, and what amount of detail must go into the ads. BALCA in a set of cases gave rigid reading to the regulation that an employer cannot offer U.S. workers less favorable wages, terms or conditions of employment than offered to an alien although the interpretation appears less than logical in many situations where an alien has been working with the employer. And BALCA in an important case, Denzil Gunnels (11/16/10), expanded notions of due process and fundamental fairness that it first addressed in HealthAmerica (7/18/06). This article will be in three parts, each dealing with one of the topics discussed above. The first answers the question of why there has been an increase in labor certification denials on the ground that there has not been sufficient detail in the advertisements. 1. What specificity is required in ads to ward off labor certification application denial? In the Stakeholders Meeting, attorneys complained that there was an increased pattern of PERM labor certification denials including ones indicating that ads must match the job description on ETA 9089 (labor certification application form) or must include all the requirements and duties in the job description. [To immigrate through employment, aliens must undergo labor certification processing in most cases which involves testing the American job market through recruitment of U.S. workers including placing ads in newspapers to ensure that the alien's immigration does not harm U.S. workers. For practical reasons involving expense in running full job descriptions (since ads are charged by line), employer reluctance to pay for lengthy ads, and DOL's seemingly past appearance of a lax attitude on how expansive an ad should be, many labor certification ads have been truncated in length.] DOL advised stakeholders to look at its Frequently Asked Questions (FAQs) to see the level of details required in the ads and the American Immigration Lawyers Association advised its members to read the recent BALCA decision, Credit Suisse Securities (USA) LLC (10/19/10). In Credit Suisse, the Board affirmed the Certifying Officer's denial for a computer software engineer where the employer's website ad stated that it had employment opportunities in a number of fields including information technology, and on the same page under the heading "Center of Excellence Opportunities," said that it was seeking employees in the areas of application development, information technology, and operations, for its Raleigh-Durham, N.C. location. The Credit Suisse decision cited the DOL's FAQ on ad specificity that The 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 requirements of apprising applicants of the job opportunity. An advertisement that includes a description of the vacancy, the name of the employer, the geographic area of employment, and the means to contact the employer to apply may be sufficient to apprise potentially qualified applicants of the job opportunity. Credit Suisse is interesting in that it did not deal with newspaper ads, but a website posting. The employer argued that the ad content requirements of the regulations did not apply to website advertisements, and suggested that the content requirements for ads placed on websites as additional recruitment were less demanding than what was required for ads placed in newspapers or journals as mandatory recruitment. [For professional positions, employers in addition to the requirements of newspaper ads, placement of the job order with the state workforce agency (SWA), and posting of a notice of filing, must take three additional recruitment steps which must be completed at least 30 days prior to filing the PERM application with the exception of one step. DOL allows employers to choose from a list of 10 methods: internet postings, use of the employer's own internet site, bonus programs, use of executive search or headhunter firms, job fairs, radio and television ads, local and ethnic newspapers to the extent that they are appropriate to the job opportunity, trade or professional organizations, on campus recruitment, and notice of job availability at the campus placement office]. BALCA disagreed stating that the additional recruitment steps were not intended to be some sort of watered down or cursory method of advertisement, but rather were intended to ensure the greatest number of able, willing, qualified, and available U.S. workers was apprised of the job opportunity. The Board held that all advertisements "placed by employers" in fulfilment of the additional recruitment steps had to comply with the advertisement content requirements. In doing so, the Board footnoted that it made no determination about the content required for additional recruitment steps other than those that were ads placed by an employer. It then listed recruitment steps to which the Credit Suisse ruling would not apply as recruitment at job fairs, on campus recruiting, use of private employment firms, and use of a campus placement office. By subtraction, the listing leaves as "ads placed by employers" for which the content must definitely be more circumspect the other six available recruitment steps - internet postings, employer's own website postings, bonus programs, radio and television ads, local and ethnic newspaper ads, and postings at trade or professional organizations. The upshot is that-the more detail there is in all "ads"-the safer the employer will be from having a labor certification application denied for lack of notice to qualified applicants of the job details. Newspapers and other media that charge for advertisements are certain to be happy with this turn of events. [ To be continued] Copyright 2011 Thomson Reuters.
† The author is a 30+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004. |
Copyright © 2003-2011 Alan Lee,
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