February 8, 2013
During the Application for Permanent Employment Certification (otherwise known as PERM), is imperative to carefully draft the language used in the advertisements and job postings. This was underscored by the Board of Alien Labor Certification Appeals (BALCA) in its recent decision on February 6 that affirmed the denial of PERM certification due to the way the advertisement was drafted, in the matter of Oracle America, Inc.
Originally, the Certifying Officer (CO) denied the employer’s PERM application because of the language used in the Notice of Filing (NOF), otherwise known as the internal job posting, BALCA affirmed the CO’s denial holding that the job posting contained a job requirement that was not indicated in the ETA Form 9089.
During the PERM application process, a job posting is required as part of the mandatory recruitment, which is designed to ensure that there are no qualified United States citizens available to fill the open position. The employer’s job posting contained wording that was not included in the ETA Form 9089 that stated the position “may be assigned to various unanticipated sites throughout the United States.” The CO denied the PERM because the job posting showed a travel requirement that was not listed on the application, and therefore would create a chilling effect for any other candidate who would apply for the position if not for the addition of the travel requirement. The PERM job posting is not allowed to have requirements that would tend to have a chilling effect upon potential applicants when those requirements are not listed on the ETA Form 9089.
Counsel for the employer argued that the application was for multiple positions, and since the word “may” implies that not all the positions have that requirement, so therefore the CO’s decision should be overturned. It is permissible to have language in the job posting that indicates an additional job requirement that is not listed on the PERM application, but this is permitted if the language used in the job posting makes it clear that the requirement does not apply to all the open positions. So if a person reading the job posting would understand that although some positions do have the job requirement, other positions do not.
BALCA disagreed with the employer’s argument. The language used by the employer in the job posting did not imply that the requirement was not for all the open positions because it could be interpreted that the sentence meant that travel may be required for all positions, not just for some.
When drafting the language of the job posting, if language is added or changed from the language used in the ETA Form 9089, it is absolutely imperative that careful attention is given to PERM requirements because even a very small change in wording or addition in wording can result in disaster when the PERM application is denied.
The moral of this case and cases like these is simple. A good way to avoid having your PERM application denied this way is to simply cut and paste the text from your ETA Form 9089 application to your job posting an advertisement. That way the situation suffered by Oracle in this case can easily be avoided.