On January 26, 2018, the Board of Alien Labor Certification Appeals (BALCA) overturned a PERM labor certification application denial. The Certifying Officer had denied the application based on two grounds: (1) the Employer failed to include “must be able to read, write, and speak the Korean language” in its advertisements or list the primary and secondary requirements; and (2) the Employer failed to list the same special skill in its job order. As a result, the Certifying Officer claimed that the Employer had not provided U.S. applicants with a sufficient understanding of the job opportunity to make an informed decision as to their qualifications.
After the Employer filed a Request for Reconsideration, BALCA found the Employer’s advertisement provided “enough detail to sufficiently apprise U.S. applicants of the job opportunity as a sales representative, including those who can read, write, and speak Korean.” The Employer’s print advertisement omitted the special skill requirement that the applicant be able to read, write, and speak Korean. The Board analogized this case to recent cases where Employers merely omitted information, and did not overstate or mischaracterize the job requirements. The Board emphasized that an Employer may be more specific but is not obligated to do so, as the regulations do not require enumeration of every job requirement in advertisements. The requirement is to apprise applicants of the job opportunity. The Board then found that the omission did not “chill” potentially qualified candidates’ interest in the job opportunity because it believed qualified U.S. workers with the ability to read, write, and speak Korean would not be dissuaded or discouraged from applying to the job opportunity based on the text of the advertisement.