Finding that a DOL certifying officer (CO) had erred in finding the employer failed to advertise a job opportunity in a newspaper in the area of intended employment, as required by regulation, and denied a permanent labor certification, the Board of Alien Labor Certification Appeals (BALCA) has reversed the denial. Matter of Hoffman Enclosures In., d/b/a Pentair Technical Products, BALCA No. 2011-PER-01754 (Aug. 5, 2015).
The Employer advertised using the San Antonio Express (“Express-News”) for its Sunday newspaper advertisement requirement, 20 CFR 656.17(e)(1)(i)(B)(1). The job was located in Pharr, Texas, a town about four hours away from San Antonio. After the DOL’s denial, the employer requested review or reconsideration and submitted information confirming that the Express-News was circulated in Pharr, Texas. The employer maintained that it chose the Express-News because it was the largest metropolitan area newspaper with general circulation. The CO found that those reasons were not sufficient because, despite the wide circulation, San Antonio is four hours away from Pharr and outside a normal commuting distance.
The Board stated that “the CO improperly conflated the issues of where a newspaper is published and where it is circulated.” Since the Express-News is a newspaper of general circulation in the area of intended employment, the fact that it was published in San Antonio is irrelevant. The regulatory requirement is satisfied if the employer advertises the job opportunity in “a newspaper of general circulation in the area of intended employment.” The newspaper does not have to be the newspaper with the highest circulation nor does it have to be the newspaper published with the closest geographical proximity to the job offered.
The Board noted that the CO did not raise the issue of whether the newspaper was the “most appropriate” newspaper and the Board also did not reach that issue. Instead, its decision was based on whether the employer had placed a newspaper advertisement in the area of intended employment – the CO found it did not and the Board reversed.
This decision means that employers may choose among newspapers that have circulation in the area of intended employment. The Board left open the question of the “appropriateness” of the selection. Employers are required to place “an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified and available U.S. workers.” Thus, while it appears the newspaper with the largest circulation does not have to be selected, this decision should not be read to mean that just any newspaper with a Sunday edition with circulation in the area of intended employment would comply with the requirement.