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Ezchip, Inc. Case Number 2010-PER-00120

  • Denial Affirmed where employer failed to provide credible, complete, timely and corroborative documentary evidence of its compliance with the pre-PERM optional recruitment requirements (company website).

I. Issue & Summary of Decision:

The Board of Labor Certification Appeals (BALCA) issued a decision on January 12, 2011 in Ezchip, Inc. Case Number 2010-PER-00120 affirming The US Department of Labor (USDOL) certifying officer’s (CO) denial of a PERM application where the employer failed to provide credible and complete corroborative documentary evidence of its compliance with the regulatory directives regarding its pre PERM filing recruitment activities. Where an employer fails to maintain solid proof of its optional recruitment activities, corroborative documentary evidence may be offered to prove that the employer complied with the regulatory directives. Corroborative evidence may be in the form of an affidavit which must be timely executed, complete and credible in order to be accepted.

II. Facts:

One of the optional recruitment steps allowed by regulations is the posting of an advertisement on the employer’s website. In this case, the employer stated in the PERM application that it had utilized the employer’s website as one of the optional recruitment steps. On the ETA 9089 PERM application form, the employer listed that such website recruitment had started between May 29, 2007, and July 19, 2007. This PERM case was filed on October 10, 2007. The CO audited this application. In response to the audit notification request, the employer attached two pieces of evidence that it had posted the employer website advertisement: 1) an affidavit from the company’s vice president stating that the employer did, in fact, engage in the recruitment on its website consistent with what was mentioned on the website; and 2) another advertisement on its website dated September 24, 2007 (within 30 days of the PERM filing). The employer did not provide screen prints of its actual posting of the advertisement on its website. The CO denied the PERM application, citing failure to comply with the provisions of 20 C.F.R. § 656.17(e)(1)(ii)(B), which states: “[t]he use of an employer’s web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” The employer filed for reconsideration arguing that the USDOL failed to consider the affidavit filed by the vice president and that the employer did comply with the requirement insofar as the September 24, 2007 website advertisement. The CO denied the reconsideration and the employer appealed to BALCA.

III. The Decision:

BALCA stated that PERM regulations require the denial of the PERM application when the employer exhibits “substantial failure” to provide documentation of its recruitment activities; in addition, the regulations do not preclude the employer from submitting documentary evidence other than the actual printouts of the web advertising. The USDOL FAQs posted on its website state that the employer may provide an affidavit of the website posting but it warns that such proof may not necessarily be accepted by the CO as adequate documentation. In this case, the affidavit by the vice president was executed almost 3 months after the purported posting of the website advertisement. Furthermore, the affidavit fails to state that the vice president himself was the person responsible for the posting of such website advertisement. Finally, the September 24, 2007 website advertisement did not corroborate the dates listed on the PERM application; in fact, it contradicts them. For these reasons, BALCA affirmed the denial.

IV. Conclusion:

Where an employer submits alternative documentary proof of its compliance with the PERM recruitment regulations as part of the responsive documents to an audit request, such evidence must be credible, timely, and complete and must corroborate, not contradict, the statements made on the PERM application form.

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