A controversy has been brewing at the Department of Labour over the exact wording for online Programme Electronic Review Management (PERM) ads.

Newspaper ads

The PERM rule, which was implemented in 2005, contains detailed instructions for what must be included in a newspaper ad, namely:

  • the employer's name;
  • the geographical place of employment (this does not have to include the street address);
  • a job description; and
  • instructions for contacting the employer (eg, a PO box number, fax number or other identifier).

The PERM rule further states that newspaper ads cannot contain:

  • a wage rate that is lower than the prevailing wage rate;
  • job requirements or duties that exceed those listed on ETA Form 9089; and
  • wages or employment terms and conditions that are less favourable than those offered to US workers.

Professional ads

In addition to newspaper ads, occupations that are deemed to be professional require three additional recruitment steps that may be chosen by the employer from a list of 10 options. When the Department of Labour planned the recruitment instructions for the PERM process, it deliberately left out any rule pertaining to the text of professional occupation ads, enabling employers to elaborate them as they see fit. The recruitment process for professional occupations is diverse and includes advertising via websites, the radio and television, college campuses and placement offices, employee referral programmes, ethnic and local newspapers, private employment agencies, job fairs and trade and professional journals.

Free to determine what to include in professional ads, most employers have played it safe by following the rules for newspaper ads.

Ads should always include the employer's name, the place of employment, the job description and instructions for contacting the employer to send a curriculum vitae. However, employers do not always realise that while some information may be omitted, it may not violate the law if included. These would be ads offering a wage rate that is lower than the prevailing rate, excessive requirements or duties or employment terms and conditions offered to the foreign worker that are less favourable than those offered to US workers. When employers publish optional information in the ads, needless errors may occur and result in denial.

Online ads

In recent years the Board of Alien Labour Certification Appeals has recognised that in practice, the content of professional ads may not always reflect what is required for newspaper ads. In a number of cases dating back to 2011, the board has granted approvals to employers that did not include their address on the same web page as their online ad. The address appeared elsewhere on the website, but was easy to find.

In April 2016 the Board of Alien Labour Certification Appeals considered Matter of VLS IT Consulting, Inc (2012-PER-1769). In this case, the employer's website had included all of the information required to notify workers of the job opportunity. However, because the web page that contained the ad did not bear the employer's name, the certifying officer issued a denial. The employer responded that the website showed the employer's name on a different page, and that job applicants could easily navigate the site to find all of the required information. The board then granted approval to the employer.

In addition, the en banc decision in Symantec Corp (2011-PER-1856, July 30 2014) held that the requirements for newspaper ads do not apply to professional recruitment steps.

Comment

Despite the apparent liberalisation of the professional recruitment rule, employers should always consider using the requirements for newspaper ads detailed in 20 Code of Federal Regulations 656.17(f)(4). Otherwise, it might be necessary to appeal the case to obtain an approval – a process that can take several years.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email (joel.stewart@employmentimmigration.com). The Fakhoury Law Group website can be accessed at www.employmentimmigration.com.

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