The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Producer.”
After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. It required the Employer to show proof of the State Workforce Agency’s (SWA) job order as well as all resumes received in connection with the position. The Employer responded and the CO continued to review the application.
The CO denied the application based on two different PERM regulations. PERM regulation 20 C.F.R. 656.17 (e)(1)(i) requires that “two print advertisements are mandatory for all applications involving professional occupations.” These advertisements must run on two different Sundays in the area of intended employment. The Employer placed the ad for the Producer position in the Wall Street Journal (WSJ), which does not qualify as a professional journal, and could not be used in lieu of the mandatory Sunday advertisements as required by the PERM regulations, because the ad was not run on a Sunday. Furthermore, the CO indicated in his denial that the employee did not meet the minimum requirements of the position. He cited PERM regulation 20 C.F.R. 656.17(i)(1).
After the denial, the Employer requested review of the case. The Employer believed the US Department of Labor had unselectively concluded the WSJ did not meet the requirements of a professional journal. In addition, they tried to use an expert’s opinion of the paper as evidence. With regards to PERM regulation 20 C.F.R. 656.17(i)(1), the Employer believed that his Employee “more than exceeds the requirements of the position.”
The CO forwarded the appeal to BALCA for review of the case arguing that the WSJ was only a general circulation newspaper. Since the paper has a widespread circulation beyond the professional market as well as other sections including news, politics and editorials, it clearly demonstrates the characteristics of any other broad-spectrum distribution newspaper. BALCA ordered the denial of labor certification.