The U.S. Department of Labor’s (DOL) permanent labor certification (PERM) program requires employers to conduct specific recruiting activities to test the labor market before filing an application. The regulation at 20 CFR § 656.17(f) sets forth the advertising requirements, which also apply to the Notice of Filing (NOF). This includes the requirement at section 656.17(f)(7) that the ads “[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL’s Board of Alien Labor Certification Appeals (BALCA) has come to rely on this section to uphold denials of certifications in a variety of factual situations where the agency speculates that more detail may have generated more or less interest in the open positions.
The cost of running the two required Sunday advertisements in some major metropolitan area newspapers can run several thousand dollars. Eliminating a few words from the text of such ads can save employers hundreds of dollars. Employers looking for guidance on what content is required in such ads may consult DOL’s Employment & Training Administration comprehensive Frequently Asked Questions and Answers (FAQ).
The aforementioned list of FAQs discusses the level of detail that must be included in the advertisement. According to the DOL, “[t]he regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer’s application, the employer will meet the requirement of apprising applicants of the job opportunity.”
While employers may initially take comfort in this apparent flexibility, in reality, reliance on this information may lead to a denial of the application in a frustrating and expensive game of “gotcha.” Based on a review of a number of BALCA decisions addressing the advertising requirements for the labor market test, it is clear that 20 CFR § 656.17(f) has become the primary justification for a vague new test requiring the express highlighting of any positive (or negative) aspect of a position that might generate more (or less) interest by U.S. workers. If an employer omits benefits or negative aspects of a job, BALCA often finds that the advertising contains “terms and conditions” that are different than those offered to the foreign employee.
Wages are probably the most obvious term and condition that, if listed, cannot be less favorable than that offered to the sponsored employee. In Florida Restaurant Group, LLC, BALCA upheld a denial where the employer advertised the offered wage as the prevailing wage but the foreign national was actually offered a higher wage. 2009-PER-00014 (BALCA August 25, 2009).
A wage range discrepancy between an NOF and the ETA Form 9089 also violates the regulation. In The Washington Post, BALCA upheld a denial where the wage range on the NOF was listed as $61,000-$79,000 but the ETA 9089 application listed $74,000-$80,000. 2011-PER-02694 (BALCA October 17, 2012).
Criminal Background Checks
Terms and conditions that are advertised but not included on the ETA 9089 are also not permitted under the regulation. In Noll Pallet & Lumber Co., the employer advertised that applicants would be required to undergo a criminal background check but that requirement was found not to apply to the sponsored employee because the requirement was not listed on the PERM application. 2009-PER-00082 (BALCA December 16, 2009). The case was denied pursuant to 20 CFR § 656.17(f)(7), on account of the advertised criminal background check being a less favorable condition to potential U.S. candidates than the conditions offered to the sponsored employee on the ETA 9089.
Listing travel in an advertisement when it is not an actual job requirement also violates the regulation. In Xpedite Technologies, Inc., BALCA upheld a denial where the employer advertised that travel was required for the position but the travel requirement was not listed in the PERM application. 2010-PER-00100 (BALCA April 7, 2010). In two Oracle America, Inc. cases, 2011-PER-01368 ETA and 2011-PER-01584, BALCA upheld denials because travel requirements were listed in the NOF but not on the ETA 9089. In those cases, the certifying officer found that even where the employer indicates that travel “may” be required and thus is not a definite job requirement, the language could “be considered a necessary requirement by interested individuals attempting to determine whether to act on the NOF.” The employer argued that the potential travel requirement was listed on the NOF only because there were multiple job offerings and some of those positions may involve travel while others would not. Yet, BALCA found that there was no way for a reader to tell that the travel requirement would not apply to the sponsored position.
Similarly, if a travel requirement appears on the ETA 9089 but not in the advertisements or NOFs, the application could fail. In Riverwalk Education Foundation, Inc., BALCA upheld a denial because an employer stated that the job required travel in the ETA 9089 but the travel requirement was not advertised. 2012-PER-02882 (BALCA July 3, 2013). The employer argued that because BALCA typically viewed travel as a detriment, not listing it on advertising could not deter U.S. workers from applying. BALCA disagreed, holding that the travel requirement should have been contained in the advertisements.
In Cosmos Foundation, Inc., BALCA upheld a denial because the employer did not list a travel requirement in the advertisement. 2012-PER-01209 (BALCA July 3, 2013). BALCA pointed out that the certifying officer who denied the application should have relied on 8 CFR § 656.17(f)(4) which required advertisements to “apprise applicants of any travel requirements,” instead of 20 CFR § 656.17(f)(7).
Finally, in Siemens Water Technologies Corp., the employer did not offer the ability to work from home in the advertisements. BALCA found that the advertisements listed the geographical location as “Houston, Texas,” which was more restrictive than the actual job conditions that allowed the sponsored employee to work from home from anywhere in the United States. 2011-PER-00955 (BALCA July 23, 2013). BALCA found that the employer’s advertisement “was unduly restrictive, misleading, and could have prevented potential U.S. applicants from applying for the job opportunity.”
In Emma Willard School, BALCA held that there “is no obligation for any employer to list every term or condition of employment and listing none does not create an automatic assumption that none exist.” 2010-PER-01101 (BALCA September 28, 2011). The sponsoring employer was a boarding school that offered free on-site housing to instructors as a resource that benefited the faculty, staff, and programs. A significant majority of the teachers and key administrators lived in school-owned housing. Employees were not required to live in school-owned housing to perform the duties of the job but residing on-site was an optional benefit.
The advertisement in connection with PERM recruitment stated the individual must “teach all levels of Spanish language classes” and “[p]erform additional duties and responsibilities typical of boarding school faculty appointments” with no mention of free housing. BALCA found that “the Employer’s recruitment advertisements did not contain terms or conditions less favorable than those offered the alien simply because the Employer opted not to list any wage or benefit information in them.” BALCA was careful to limit the holding to the precise circumstances. Therefore, the decision should not be construed as showing that an employer never is required to offer or disclose a housing benefit to U.S. workers.
Despite BALCA’s decision in Emma Willard School, on-site free housing benefits typically are viewed as a benefit that must be advertised. In Blue Ridge Erectors, Inc., BALCA held that “[t]he option to live on Employer’s premises is a term and condition of employment that creates a more favorable job opportunity for which the labor market was not tested by the Employer’s recruitment effort.” 2010-PER-00997 (BALCA July 28, 2011). BALCA denied the application, finding that U.S. workers might have responded if the benefit of on-site housing was listed and therefore the employer failed to demonstrate whether there were able, willing, and qualified U.S. workers available for the position.
BALCA came to the same conclusion in Phillip Dutton Eventing, LLC, finding that the option to live on the employer’s premises at no additional cost is a term or condition of employment that creates a more favorable job opportunity for which the labor market was not tested by the employer’s recruitment efforts. 2012-PER-00497 (BALCA November 24, 2014). Although BALCA recognized that silence on a particular benefit of a job does not automatically create a presumption that the benefit does not exist just as a failure to state a wage in recruitment does not create an assumption that there is no wage, it pointed out that wages are a legal requirement to work and free on-site housing is not a legal requirement. BALCA found that no reasonable potential applicant would have assumed that there was free on-site housing available in connection with the position.
Just over a month after Phillip Dutton Eventing, LLC, BALCA decided Needham-Betz Thoroughbreds, Inc., another on-site housing benefit case. In this case, BALCA discussed the purpose of the PERM program, finding that the program exists to ensure that there are insufficient U.S. workers who are able, willing, qualified, and available for a sponsored position. BALCA indicated that by not including the benefit of free housing in the advertisements or NOF, the employer offered less favorable terms and conditions to potential U.S. workers than the sponsored employee. BALCA recognized that not every duty, requirement, and condition of employment needs to be included in the advertisements, citing the DOL’s FAQs and Emma Willard. However, BALCA stated that free housing must be listed in advertisements because it is not a standard benefit and is a “huge income enhancement” that is not readily assumed as part of an employment opportunity.
BALCA’s inconsistent application of 20 CFR § 656.17(f), the regulation that governs the content of advertising and NOFs, has resulted in PERM practitioners exercising extreme caution by adding superfluous and expensive language to advertisements. Because the standard is not clear, the test then seems to be “list any/all terms and conditions that appear in the ETA 9089”—just to be safe. The logical nexus between the advertisement and the position listed on the employer’s application is a rigid one.