Court Upholds PERM Certification Despite CO Denial Citing Recruitment Violation

An application for permanent labor certification (PERM)must be preceded by specific job recruitment steps that the employer is required to perform, according to the Code of Federal Regulations. Regulations require that advertisements placed by the employer in newspapers of general circulation or professional journals, as part of the required PERM job recruitment process, must not contain any job requirements or duties that exceed the job requirements or duties listed on the PERM application form ETA 9089. A violation of this regulation is justification for denial of the PERM application.

The US Department of Labor Board of Alien Labor Certification Appeals (BALCA) recently decided a case that discussed whether this regulation also applies to job orders, in Matter of Chibad Lubavitch Center, BALCA Case No. 2011-PER-02614. In this case, the employer, Chabad Lubavitch Center, posted the required job order at the New York State workforce agency (SWA) that contained as a job requirement the experience level of “mid-career (2-15 years),” but the ETA 9089 form PERM application listed the experience requirement as 24 months.

The US Department of Labor Certifying Officer (CO) denied the PERM application on the basis that the recruiting materials contained experience requirements that exceeded those that were listed on the ETA 9089 form, because while the job order required a range of 2 to 15 years, the actual PERM application required a maximum of 2 years. The CO argued that the SWA job order placed by the employer was in violation of 20 C.F.R. Section 656.17(f)(6) because it listed job requirements that exceed the job requirements listed on the PERM application form.

The employer contended that the SWA job order form offered only three experience options from which the employer to choose: entry-level intern (0-2 years), mid-career (2-15), and senior (15+ years). The employer explained that it had no control over the listing because there were only three available experience options, and the position was automatically listed with the mid-career (2-15 years) experience requirement.

The employer then appealed the denial to BALCA for review. The BALCA court reasoned that in its opinion, job orders should have the same requirements as those of newspapers and professional journals. BALCA also stated that if Section 656.17(f)(6) applied to job orders, then the CO would be correct in denying the employer’s PERM application, even if the employer did not have control over the job offer it to its being limited to only three experience options. In its analysis, the BALCA court explained that job orders are advertisements, and they are a definite part of the entire recruitment process, but it also quoted Section 656.17(f)(6) that expressly limited the requirement in question to “advertisements placed in newspapers of general circulation or in professional journals,” and the Section is silent about job orders.

Therefore, the court held that the regulation that prohibits advertisements in newspapers and professional journals from listing job requirements that exceed those requirements listed in the PERM application, does not apply to job orders used in PERM recruitment. Consequently, the BALCA court reversed the CO’s denial and directed PERM certification to be granted.

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