Introduction

The Department of Labour continues to struggle with distinctions in advertising requirements for the Permanent Electronic Review Management (PERM) recruitment process, to the consternation of employers and attorneys.

The basic premise of the PERM rule is that ads should be brief and to the point, simply informing those who have been referred about the job.

At issue is the fact that ads may be substantially different at each stage of the process, with different rules for:

  • ads placed in newspapers of general circulation;
  • ads for professional positions; and
  • job orders that are placed with state workforce agencies (SWAs).

SWA job orders

Despite the differing rules for various ads, the Department of Labour has steadfastly argued that ads should be similar, especially with regard to listing the job's travel requirements.

However, in the recent Board of Alien Labour Certification Appeals (BALCA) decision in First Tek Technologies, Inc, a three-judge panel ruled that the regulatory requirement to list travel requirements in job ads placed in newspapers of general circulation and professional journals does not extend to job orders placed with SWAs.(1)

In addition, although the PERM rule specifies that job orders must be listed with SWAs for at least 30 days, federal law lacks specific details about the required content of the job orders. Instead, each SWA's individual requirements determine:

  • how job orders should look;
  • what information must be included; and
  • to whom, where and when the orders may be disseminated.

As may be expected, there are inconsistencies between the federal and SWA models, including:

  • whether to use wage ranges (which may conflict with federal wage determinations);
  • characterisation of minimum job requirements (within the guidelines of national labour statistics), special skills or licences, which may differ in each state; and
  • whether job duties are expressed in generic or more specific terms.

In addition, SWA job order placement procedures differ widely. The above requirements may be governed by pull-down menus or other online techniques such as requiring employers to answer specific questions, rather than provide their own information. Some SWAs use fax or email to receive job orders, while others accept only online or phone applications.

For the past decade, lawyers have disputed the content of SWA job orders with the Department of Labour and many PERM applications have been wrongfully rejected because they followed an SWA format and not the federal one.

Professional journals

In Symantec(2) the BALCA ruled en banc that the 10 additional recruitment steps that are required to supplement recruitment efforts for job offers involving professional positions (ie, positions requiring experience and an advanced degree) need not conform to the basic requirement of placing two ads in Sunday newspapers of general circulation.

Instead, the Department of Labour specifies that an advertisement placed in a professional journal may be used to substitute one of the two Sunday newspaper ads. However, the Department of Labour's use of the term 'professional' is confusing. Whereas the professional journal referred to as one of the 10 additional means of recruitment must be that of a professional organisation that has membership requirements for its readers, the professional journal that an advertisement may be placed in in lieu of a newspaper of general circulation refers to one that is circulated to the public and not just to professional membership.

Comment

Both BALCA cases relied on a strict reading of the regulations which appear in separate sub-sections of the PERM rule and clearly state the distinctions in advertising.

Given that BALCA decisions serve only as guidance to the public and future judging panels, rather than legal precedents, employers may want to consider a variety of factors when drafting PERM advertisements. Numerous BALCA decisions are conflicting and even en banc decisions have been reversed seemingly due to pressure from the Department of Labour or other non-judicial forces.

Some employers may choose to follow BALCA decisions, while others may play it safe and adhere to long-standing Department of Labour preferences for uniformity in all advertisements. Yet another approach would be to adopt a cautious combination of industry standards, the employer's own established business practices, BALCA guidelines and the Department of Labour's frequently asked questions.

The ultimate goal is an authentic job offer and a fair recruitment process that does not conflict with the regulatory language.

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.

Endnotes

(1) 2012-PER-691, November 4 2015.

(2) 2011-PER-185 (BALCA 2014).

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.