BALCA is Fair, Who Knew?

BALCA is Fair, Who Knew?!

26AUG

Those employers who have filed a Labor Certification on behalf of a foreign worker understand the tediousness involved in this process. The system is relentless and unforgiving and Certifying Officers (CO) have very broad discretion in the decision-making process. Recently, the Board of Alien Labor Certification Appeals (BALCA) has been issuing very logical and fair decisions, which of course is beneficial to Employers. This can especially be seen in a recent en banc BALCA decision. 

For certain professional occupations, a sponsoring Employer must conduct mandatory recruitment and choose 3 additional recruitment steps from a list of 10 possible advertising mediums. 20 CFR § 656.17(f) lists advertising requirements for the newspaper of general circulation or professional journals (mandatory recruitment). But, the regulations are silent as to the content required for advertisements placed for the additional recruitment steps. 20 CFR 656.17(e)(1)(ii). BALCA has previously found that although the regulations are quiet on this issue, the advertisement requirements found at § 656.17(f) implicitly apply to the 3 additional recruitment steps.

In the instant case, Symantec Corporation, 2011-PER-01856 (July 30, 2014) , BALCA en banc disagreed with the previous ruling found in Matter of Credit Suisse Securities LLC, 2010-PER-00103 (Oct 19, 2010). The issue in Symantec is whether a Certifying Officer may deny an Application for Permanent Employment Certification for a professional occupation if one of the additional recruitment steps does not comply with the requirements found in § 656.17(f). BALCA has now held that the additional recruitment steps are not bound by § 656.17(f).

In Symantec, the Employer advertised for the position of Financial Programmer Analyst and the case was denied by the CO after audit. The CO denied the case because Jobvertise, one of the 3 additional recruitment steps used, contained a travel requirement that was not listed on ETA Form 9089. The CO stated that Jobvertise contained job requirements that exceeded those listed on the ETA Form and the Employer was therefore in violation of § 656.17(f)(6). Specifically, the travel requirement read: “May be required to be available to work on projects at various, unanticipated sites throughout the United States” The Employer requested reconsideration and the CO forwarded the case to BALCA.

On Appeal, the Employer argued that the content requirements in §656.17(f)(6) do not apply to the additional recruitment steps for professional occupations, but instead only applied to advertisements placed in newspapers of general circulation or in professional journals. Further, the Employer argued that Jobvertise was used to advertise multiple positons and the use of the word “may” did not create a travel requirement for all positions, but only that it might be required for some. BALCA sided with the Employer and the CO requested an en banc decision because of contradicting rulings on this issue.

BALCA en banc agreed with the Employer and stated that the regulations explicitly identify 3 situations in which an Employer must comply with the advertising content requirements in §656.17(f):

1. When an Employer places an advertisement in a newspaper of general circulation or a professional journal in fulfillment of the mandatory requirements for applications involving professional occupations;
2. When an Employer places an advertisement in a newspaper of general circulation in fulfillment of the mandatory requirements for applications involving non-professional occupations; and
3. When an Employer posts a Notice of Filing announcing its intent to file an Application of Permanent Employment Certification

Each of these sections cross-reference the advertising content requirements of §656.17(f), but no such cross-reference exists in the regulations that require Employers to conduct additional recruitment steps for applications involving professional occupations. The CO argued that in light of PERM regulations and policy considerations, §656.17(f) implicitly applies to the additional recruitment steps. BALCA disagreed and stated that where the regulation is unambiguous, it must be interpreted by the common understanding of the terms used. BALCA further noted that PERM regulations, in regard to the additional recruitment steps, only require that the Employer advertise for the occupation involved in the application as opposed to the specific job opportunity.

Although a win for Employers, this ruling does not mean that Employers can require more from U.S. workers than what is required on ETA Form 9089. You must remember that an Employer still has to conduct recruitment in good faith. Further, BALCA gave much weight to the fact that the Employer in this case was advertising for multiple openings for the position with varying requirements and used the phrase “may be required” instead of a definitive travel requirement. Because the Employer advertised in this way, BALCA concluded that its advertising was made in good faith.

It is important to note that BALCA acknowledged a CO’s broad discretion to order Supervised Recruitment where the CO has reason to believe an Employer’s recruitment efforts were not sufficient to make the certification required by §212(a)(5)(A) of the INA. BALCA stated that the CO could have ordered Supervised Recruitment, but instead chose to deny the case on the ground that the Employer failed to meet a requirement that is NOT mandated by the regulations.

My suggestion: Always err on the side of caution, especially when dealing with the PERM process. Although I feel, based on the ruling in Symantec, that the 3 additional recruitment steps can contain information that is briefer than what is listed on ETA Form 9089, I do not think this ruling allows for an Employer to list requirements which exceed those provided on ETA Form 9089. If an Employer chooses to list more restrictive requirements on the 3 additional efforts, it will most assuredly open itself up for denial based on a lack of good faith recruitment or even possibly supervised recruitment.