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The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Marketing Manager.”
Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.
After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.
The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF, SWA job order, newspaper advertisements and web advertisements were used to hire for many positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may require employer-reimbursed travel” does not create an obligatory travel condition for all of its job openings. They strongly believed that its hiring practices complied with the Department of Labor‘s regulations on advertising for multiple positions. The DOL had previously provided that the language “some positions may require travel” may be utilized for recruitment covering multiple positions when some of those positions have no travel requirement.
Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. The CO stated that the whole reason for SWA job orders, as well as the additional recruitment efforts, is to test the labor market. If any advertising is placed for the job(s), it may not contain any job requirements or language that is not listed on the ETA 9089 Form. The CO forwarded the case to BALCA for further examination. In the CO’s statement of position, he referred to the Employer’s lack of clarity in the advertisements – the Employer did not distinguish which Marketing Managers require travel and which ones do not.
After BALCA’s examination of the case, they reversed the CO’s decision. The BALCA board believed that the Employer’s NOF, SWA job order and advertisements did not include a job requirement that surpassed the one recorded on the ETA Form 9089. They found that the phrase “may require employer-reimbursed travel” was indistinguishable from the DOL-endorsed phrase “some positions may require travel.” BALCA stated it was obvious from the advertisements that “not all of the Marketing and Product Manager positions required travel.” The board did not think any of the advertisements were misleading and would prevent any US job applicant from applying for the positions.