On April 16, 2010, the Board of Alien Labor Certification Appeals (BALCA) affirmed the certifying officer's denial of an employer's application for permanent employment certification (PERM) under Section 212(a)(5)(A) of the Immigration and Nationality Act and the PERM regulations under 20 C.F.R. § 656. The denial was based on the employer's lack of sufficient documentation regarding its recruitment efforts, specifically, the dates on which the opening was posted on the company's web site. In order to qualify for PERM certification, an employer must have recruited for the position through multiple methods. The regulations also require documentation of compliance to be retained for five years. A company's own web site posting is one acceptable medium of recruitment, but the DOL recently clarified the requirements that must be met for such postings to qualify as an acceptable form of "recruitment."
The regulations indicate that a company web site advertisement "can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application." 20 C.F.R. § 656.17(e)(1)(ii)(B). Additionally, the Office of Foreign Labor Certification (OFLC) web site indicates that an affidavit accompanying undated printouts may, in the discretion of the Certifying Officer (CO), satisfy the documentation requirements as well. In this particular case, when the CO requested recruitment documentation during a PERM audit, the petitioning employer submitted a printout from its web site, along with the recruitment report indicating the dates of the posting, signed by the Vice President of Human Resources. The employer argued that the printed pages were primary evidence of actual posting and the recruitment letter and dates attested to on the Form 9089 were secondary evidence of the relevant dates.
In affirming the CO's denial of certification in this case, BALCA held that the petitioning employer had failed to document the web site advertisement through the method specified under the regulation or any other adequately credible fashion. It noted specifically that the OFLC's site stated that secondary evidence submitted to prove the dates of listing must be in the form of an affidavit attested to by the official responsible for such postings. The petitioning employer's recruitment letter and Form 9089 responses failed to meet these standards, and there was no evidence that the Vice President of Human Resources was the official responsible for web site employment postings. BALCA also noted that the printouts submitted contained only the company's web site address at the bottom of the pages and not a full URL to the employer's job posting page. BALCA concluded that "retention of reliable contemporaneous documentation of the status of a web page on the [claimed] dates . . . is essential for an employer to be able to meet the PERM documentation requirement of dated copies of company web site postings."