News Release from Jewell & Associates, PC – October 19, 2011

Employers placing advertisements for their labor certification applications must draft them carefully to ensure they comply with the PERM regulations. 20 CFR 656.17(f)(7) states that ads may not contain terms and conditions of employment that are “less favorable than those offered to the alien.” However, the Department of Labor has also said that employers have the option of placing “broadly written advertisements with few details regarding job duties and requirements” (PERM FAQs, March 3, 2005). Between these statements is a puzzle for employers: Which terms and conditions may be omitted if the ads are to remain compliant?

In Emma Willard School 2010-PER-01101 the Board of Alien Labor Certification Appeals handed down a decision whose result seems helpful for employers, but which ultimately fails to illuminate the little guidance available. The Certifying Officer had denied the employer’s application because of its failure to list the availability of subsidized housing in its recruitment. The Board, reversing the CO, pointed out that the regulations do not require ads to list the wage rate or other benefits, and that just because ads do not list that information does not mean that they contain terms or conditions less favorable than those offered to the alien. A reader, the Board said, “would not assume that the Employer is offering no wage at all simply because one isn’t listed, nor would he assume there are no other benefits, terms, or conditions. … There is no obligation for an employer to list every term or condition of employment and listing none does not create an automatic assumption that none exist.”

Employers may find this encouraging, but the decision actually contains little of use for those drafting their next round of recruitment advertisements. It is true that the regulations do not require ads to contain all of the terms and conditions of employment, so commonplace benefits such as healthcare and vacation days may be safely omitted. Indeed, as with the housing benefit in Emma Willard, their inclusion would make nonsense of the option of placing “broadly written” ads. On the other hand, the regulations do prohibit terms and conditions less favorable than those offered to the alien; hence the Board’s disclaimer that its opinion “should not be construed as support for an employer never having to offer or disclose a housing benefit.” So the question remains: Which terms and conditions can be omitted from, and which must be listed in, recruitment material? Without further direction, cautious employers should continue to list unusual or otherwise significant benefits.

News Release from Jewell & Associates, PC – September 20, 2011

In a recent post we discussed the BALCA decision In the Matter of The University of Texas at Brownsville, 2010-PER-00887. The Board held that the Certifying Officer was wrong to deny the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. The Certifying Officer, in support of his argument, had referred to an answer to an FAQ by the Office of Foreign Labor Certification (OFLC), which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.” The Board disagreed and reaffirmed its position that agencies may not impose substantive rules that have the force of law through answers to “frequently asked questions.”

We thought it sensible that employers and practitioners treat Brownsville with caution until the Department of Labor, through the OFLC, revealed its intent towards the offending FAQ answer. The FAQ and answer have now been revised and can be found at the FAQ web page (and AILA InfoNet, doc. 11090164). The answer is now “yes”: “an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers.” It then lists three conditions:

• The journal’s job listings must be viewable to the public without payment of subscription and/or membership charges. UPDATE: This condition was removed from the FAQ on September 28, 2011.
• The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal’s website.
• Documentation of the placement of an advertisement in such a journal must include its text and evidence of its start and end dates.

© Jewell & Associates, PC 2011

News Release from Jewell & Associates, PC – September 6, 2011

In General Electric Company (GE Energy) 2010-PER-763 the employer’s Application for Permanent Labor Certification was accepted for filing by the Department of Labor on October 26, 2009. The employer had posted the job order on April 27—182 days before the filing date—and removed it on May 27. The Certifying Officer (CO) denied the application because the job order was placed more than 180 days before the application was filed, and the job order “must be conducted at least 30 days, but no more than 180 days, before the filing of the application” (20 CFR § 656.17(e)(1)(i)).

The Board vacated the CO’s decision and returned the application for certification. The Board held that an employer must file its LC application “at least 30 days, but no more than 180 days, after the end date of its SWA job order, not the start date.” The LC had therefore been filed on time, since the latest date on which the LC could be filed was November 23.

The Board’s reasoning is scant. It refers to the regulations, and Ameyovi Oyassan 2007-PER-68, but neither seems to support its reasoning, and they are not discussed. In Oyassan the employer listed the job order start date as June 12 and its end date as August 12. It then filed its LC on July 19. The Board held that the job order had to have been completed at least 30 days, but no more than 180 days, before filing, and added: “[T]he employer believed that it could file the application 30 days after the SWA job order started. However, the applicable time is 30 days after the SWA job order ended.”

The GE Energy Board seems to have relied on this to support its interpretation of “conducted” in the regulation as meaning “ended” rather than “completed in its entirety.” The latter, proper interpretation was clear as recently as Blue Mountain Stone, Inc. 2010-PER-00488 where the employer filed its LC 206 days after the job order began, and 176 days after it ended. The panel of judges in Blue Mountain affirmed the CO’s denial, noting that the employer misunderstood the meaning of “conducted,” which has two interpretations depending on whether it relates to 30 or 180 days. When it relates to 30 days, it means that “the SWA job order must have ended at least 30 days prior to the filing” because it ensures that the employer has the time to receive resumes, contact applicants, and make final hiring decisions. When it relates to 180 days, it means that “the job order must begin no more than 180 days prior to the filing,” since the job order becomes stale if too much time passes between its placement and the filing of the application.

Indeed, the problem with the GE Energy approach of using the end date of the job order as a marker is shown by substituting different facts. Imagine that an employer makes the job order one of its last recruitment steps, so that it is removed 120 days after the first print advertisement is run. According to a strict interpretation of GE Energy, the LC can be filed 180 days after the job order is removed, so our employer, relying on the decision, files the LC 180 days after the job order is taken down. The LC filing date is now 300 days after the first mandatory recruitment step. This LC would be properly denied by the CO as contrary to §656.17(e)(1)(i), and no Board would overturn the decision. This absurd result, and prior BALCA decisions, indicate that GE Energy is problematic and should not be relied on in practice.

© Jewell & Associates, PC 2011

News Release from Jewell & Associates, PC – August 3, 2011

In the Matter of The University of Texas at Brownsville (2010-PER-00887), BALCA held that the Certifying Officer (“the CO”) abused his discretion when he denied the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. While this may appear to end the Department of Labor’s requirement that such advertisements be in print, there are reasons to be cautious.

The employer used the special recruitment and documentation procedures for college and university teachers; the position recruited for was Assistant Professor in Health and Human Services. The CO denied certification on the ground that Inside Higher Ed (IHE), the national professional journal used during recruitment, was not appropriate because it is only available in electronic form.

The employer requested review of the matter by BALCA. In his statement of position the CO supported the denial by reference to an FAQ posted by the Office of Foreign Labor Certification, which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.”

The Board noted that both regulations dealing with national professional journals are silent on the matter of whether the advertisements placed in them must be in print or electronic form. It also noted the OFLC’s FAQ on the subject. However, the Board stated that according to its previous decisions, a response to an FAQ cannot create a substantive rule adverse to an applicant without first undergoing notice and comment rulemaking; “[FAQs] are not a method by which an agency can impose substantive rules that have the force of law.” (Denzil Gunnels, 2010-PER-628, citing HealthAmerica, 2006-PER-1, en banc.)

The Board found that the FAQ response imposed a substantive requirement on employers that was not supported by the PERM regulations. Since the CO did not dispute that IHE was a national professional journal, and did not explain why an electronic version was inadequate, the denial was an abuse of discretion. The case was remanded for the CO to review the application’s merits.

What implications does Brownsville have for employers and practitioners? Notionally, this appears to be the end of DOL’s requirement that these advertisements be in print. However, there are two strong reasons to be cautious. First, this was a panel decision that could be overturned by the Board sitting en banc, should the CO request the decision be reviewed. Second, even if the decision stands, BALCA decisions are not binding on DOL. A little caution is therefore necessary until DOL reveals its intent towards the FAQ that created the print-only policy.

© Jewell & Associates, PC 2011