Practice Pointer

PERM Recruitment and BALCA Decisions Guiding Compliant PERM Recruitment

By the DOL Committee of the AILA NY Chapter

Introduction

The standard required for compliant PERM recruitment has been a problematic part of PERM practice since the inception of the PERM regulations in March 2005. The required content of the recruitment guided by 20 CFR 656.17(e) and 20 CFR 656.17(f) has been a source of contention since the inception of the PERM regulations. Exactly what content is required for various recruitment vehicles has undergone several interpretations, frequently conflicting BALCA decisions until Matter of Symantec[1]. This practice pointer will cover the applications for basic PERMs governed under 20 CFR 656.17. Special handling PERMS for college and university teaching positions governed by 20 CFR 656.18 and Schedule A will not be covered in this pointer.

Adding to the challenges of compliant wording in PERM recruitment is the reality of changing website platforms both at state workforce agencies, employer websites and other websites used for PERM recruitment. Many changing platforms have created mandatory text which is not compliant with the PERM regulations. For example, some sites require a range of experience which cannot be changed or skipped. Other problematic formats require a salary range or a statement indicating that the offered salary will be commensurate with experience.

Several en banc BALCA casesas well as subsequent guidance from the Office of Foreign Labor Certifications have shed important light on the limits of denials for perceived recruitment violations.

Background on required Recruitment

All PERM filings, whether professional or not are required to place two Sunday advertisements in a newspaper of general circulation, place a job order with the State Workforce Agency where the position is located and post the notice of filing on the employer’s premise. If the job classification in the PERM application is considered to be professional as defined under Appendix D of the 2009 Revised Prevailing

Wage Guidance[2], three additional recruitment steps are required. Ten recruitment options are designated in the regulations for the additional professional recruitment.

The recruitment content for the two Sunday newspaper advertisements, limited use of professional journals in lieu of one Sunday advertisement[3] and the notice of posting are referenced in 20 CFR 656.17(f)(1) thru (7). The required SWA Job order recruitment and tenprofessional recruitment options are referenced in 20 CFR 656.17(e), have no specific content requirements and varying evidentiary requirements.

BALCA Speaks – The content in Recruitment

Until the issuance of the en banc BALCA decision, Matter of Symantec, there had been inconsistent BALCA cases regarding the content of recruitment under 20 CFR 656.17(e). 20 CFR 656.17(f) specifies that recruitment governed by this regulation must list the name of the employer, direct applicants to the employer, indicate geographic area of employment, include any travel requirements and describe the job offer with enough specificity to appraise applicants of the job opportunity. 20 CFR 656.17(e) is silent on the content of recruitment but is generally specific on the type of documentation to be provided for each recruitment option. Prior to Symantec, some decisions, most notably Matter of Credit Suisse Securities (USA) LLC[4],held that by inference and intent, the content requirementsenumerated in 20 CFR 656.17(f) also applied to the recruitment appearing under 20 CFR 656.17(e).

Symantec held that the recruitment in 20 CFR 656.17(e), in this particular case a website posting, was not subject to the specific requirements of 20 CFR 656.17(f). Referring to the preamble of the PERM regulations,[5] the decision held that the recruitment under 20 CFR 656.17(e) required the employer to appraise U.S. workers of the availability of a position within the “occupation” rather than strictly appraise the U.S. worker of the specific job opportunity.

SWA Job Orders

The requirement of job order placement has been particularly problematic because there is no avoidance of this requirement in the regular PERM process. As technology has permitted the State Workforce Agencies to change their platforms to suit other needs, compliancy with the wording for PERM job orders has sometimes gone by the wayside. Some of the problems include requiring specific experience ranges and salary ranges in platforms that do not allow these fields to be bypassed. Putting the specific requirements in an open text field has been the solution in many but not all cases. Explaining unavoidable problems in job order placement was a necessary part of PERM practice prior to a landmark BALCA decision, Matter in A Cut Above Ceramic Tile[6].

In A Cut Above Ceramic Tile, a copy of the job order was not available because of the prompt disposal of the job order record by the Virginia State Workforce Agency. The en banc decision looked at the plain wording of the regulation and held that the evidence required for the placement of a job order are the relevant dates listed in sections I.c.6 and I.c.7 of Form ETA 9089.

In a subsequent Stakeholders Meeting with the Office of Foreign Labor Certification, DOL confirmed that the evidence required in connection to the State Workforce Job orders were the dates on the Form ETA 9089.[7] However, the minutes of this meeting also reveal that if employers select to submit copies of job orders with an audit, the contents will be scrutinized for good faith compliance.[8]

Good faith efforts to create a compliant as possible job order with the State Workforce Agency remains an ethical obligation for attorneys irrespective of whether a job order will be submitted or not at the audit stage.

Requirement to demonstrate that the job opportunity is open to U.S. Applicants

A word of caution regarding recruitment content must be added in light of the separate requirements of 20 CFR 656.10(c)(8). This regulation requires a showing that the job opportunity is clearly open to a U.S. worker and is generally interpreted to require that the recruitment adequately appraises the worker of the job opportunity. Although denials on this basis tend to have requirements or other factors in the recruitment that contradict the Form ETA 9089, best practice is for individual labor certifications is to match the requirements in 20 CFR 656.17(f) wherever possible. [9]

Conclusion

Although best practice for PERM recruitment is to make all recruitment efforts identical, this is an easier proposition for PERM recruitment based on one or a few PERM applications. For employers who are heavy users of the PERM program, this individual recruitment for every PERM application is often grossly inefficient and hard to track. There are several BALCA decisions permitting multiple job offers to be included in one piece of recruitment. Although the applications may contain some diverse requirements, the use of the words “may travel”, “may use (a skill)”, and other optional requirements have permitted these type of PERMS to prevail.[10]

[1] 2001-PER-01856 (July 30, 2014) en banc.

[2]AILA Doc. No. 10010468

[3]20 CFR 656.17(e)(1)(B)(2)

[4] 2010-PER-103 (Oct. 19, 2010)

[5]69 Fed. Reg. 77326, 77345 (Dec. 27, 2004)

[6] 2010-PER-00224 (March 8, 2012) en banc

[7]DOL /OFLC Stakeholders’ Meeting Notes, March 29, 2012, AILA Doc. No. 12042544

[8]Id.

[9]See Matter of Norman Fries, Inc., 2012-PER-03756; Matter of Webilent Technology Inc., 2012-PER-03400

[10]See Matter of Microsoft Corp., 2011-PER-00789 (April 12, 2013)