The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Dentist.”
The CO issued an Audit Notification on October 2, 2007 requesting additional documentation in regards to the Employer’s recruitment efforts. The Employer responded to the audit by producing copies of its recruitment report and an ad listed on a job search website. Certification was denied by the CO because the recruitment done through the web site neglected to list the employer’s name, marking it as “confidential”. In a request for review, the Employer argued that the Employer’s full name and address were in fact listed on the ad at the following website http://hotjobs.yahoo.com. Though the Employer tried to prove the “advertisement could clearly be matched to the sponsored job opportunity,” the CO found the Employer did not overcome the original deficiencies of the application’s denial. The case was then forwarded to BALCA on November 19, 2009 and the Employer filed a Statement of Intent to Proceed. In the Statement of Position filed on January 22, 2010, the CO restated the reason for denial as the Employer’s identification as “confidential” on the website advertisement.
PERM regulation 20 C.F.R. § 656.17(f)(1) controls and it provides if an employer places an advertisement on a job search web site other than the employer’s, there are certain requirements such as including the “name of the employer.”
In the instant case, the Employer’s name was marked as “confidential” but if a searcher clicked on the links of the website they would be taken to the advertisement which did contain the employer’s name and address. BALCA found a potential employee would have been able to find the full information by clicking on the links available in the listing. Further, the web page without the Employer’s name was not the advertisement itself; the advertisement was a link that could be found on the web page that did include the Employer’s name.
Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.