The U.S. Department of Labor’s Board of Alien Labor Certification Appeals, otherwise known as BALCA, recently issued a decision in favor of an employer seeking a labor certification to secure permanent employment of a foreign national worker.
In the Matter of Emma Willard School, BALCA No.: 2010-PER-01101, the Board held that an employer need not specify in its job availability advertisements that it offers employer-subsidized housing with respect to a permanent employment position sought in the labor certification application.
After conducting a lengthy recruitment campaign that produced no available U.S. workers, the employer, Emma Willard School, a boarding school for girls in Troy, New York, filed an Application for Permanent Employment Certification with the Department of Labor for the position of “Spanish instructor.” The Department of Labor’s certifying officer had denied the application, arguing that the advertisement’s failure to specify the boarding school offered optional employer-subsidized housing violated department regulations requiring employers to ensure their advertisements “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. “
In appealing the certifying officer’s denial, the boarding school argued that the job availability advertisements did not include the housing benefit because the Spanish instructor employee is not required to live with the school to perform the duties of Spanish instructor. Instead, the school argued, the subsidized housing was an optional benefit to the job offered. The Board agreed, concluding there is no obligation for an employer to list every term or condition of employment and that the absence of such an itemized listing does not create an automatic assumption that no such benefits exist.
Employers who seek such labor certifications as a necessary first-step in securing U.S. lawful permanent residence, rather than a mere temporary employment-related visa benefits for an existing or prospective foreign national employee, should take solace in the Board’s decision. In recent years, Department of Labor certifying officers have been unnecessarily auditing and denying labor certification applications if the filed applications evidence the foreign national employee opts to work on the employer’s premises or from their personal residence. Given the ever-increasing flexibility afforded by employers in the location for completion of job duties, BALCA has afforded employers with commonsensical parameters in which to evidence the non-availability of U.S. workers to perform job duties.