BALCA Case Says PERM Recruitment Must Disclose Travel Requirements
PERM recruitment advertisements may not contain job requirements or duties that exceed the job requirements or duties listed on the PERM application Form 9089, according to federal regulation. The purpose of this rule is to avoid misleading potential US job applicants by misrepresenting the actual job requirements and discouraging them from applying for the job opening. So it would seem that advertisements that have less strict job requirements or duties would be acceptable. Not necessarily, as explained in this article. If you have questions about the PERM process and would like to consult with an attorney, contact The Law Firm of Shihab & Associates. We have over 50 years of combined legal experience in a wide variety of complex and immigration law matters.
This point is illustrated in the BALCA case of In the Matter of IBM Corporation, decided August 27, 2013. In this case, the employer posted an advertisement for the position of senior management consultant as part of its PERM recruitment process, and the advertisement contained job requirements that were less restrictive than the requirements on Form 9089. The employer argued that this should not be a problem because the regulation requires advertisements not to have more restrictive requirements, but it does not prohibit them from having less restrictive requirements like the advertisement the employer published.
One of the requirements of conducting PERM recruitment is to inform US workers about the job opportunity by placing a job order for 30 days with the State Workforce Agency (SWA) that serves the area of intended employment. The BALCA has previously held that all advertisements, including SWA job orders, must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.
The Form 9089 PERM application filed by the employer stated that the work will be performed at “various client sites throughout the U.S.,” but the advertisement that was placed by the employer with the SWA did not contain this language. Since the advertisement was less restrictive than the PERM application, this would not seem to discourage potential US applicants from applying. However, the US Department of Labor Certifying Officer (CO) denied certification anyway.
Originally, the CO denied certification on the basis that the employer violated 20 C.F.R. § 656.17(f)(6), which says the requirements or duties listed on the SWA cannot exceed those listed on the Form 9089. On appeal, the Board of a Labor Certification Appeals (BALCA) agreed with the employer that the CO incorrectly cited that regulation as a basis for its denial. However, the CO acknowledged this point, but asserted that its denial was proper according to 20 C.F.R. § 656.17(f)(6), which requires the SWA job order to accurately reflect the geographic area of employment.
The employer argued that there was insufficient space on the SWA job order to add the additional language “various client sites throughout the U.S.” BALCA rejected this defense and, consequently, it affirmed the CO’s denial of the employers PERM certification.
Note that PERM denials like this can be easily avoided simply by making sure the text in the advertisement is identical to the text on the Form 9089. If you would like further information about the PERM process or any other immigration matter, please contact our immigration attorneys at The Law Firm of Shihab & Associates, Co., LPA to schedule a consultation with an attorney at an office near you.