BALCA Releases En Banc Decision on Travel Requirements
From USADNEWS Volume XIV, Issue 3
In the Matter of Arbin Corporation (August 2020), an en banc panel of the Board of Alien Labor Certification Appeals (BALCA) reviewed the employer’s petition to determine “whether 20 CFR § 656.17(f)(4) require[s] disclosure of any job duties which entail travel in the mandatory newspaper advertisements.” The Board also requested a briefing from the employer and the Certifying Officer (CO) on additional “potential issues” which had been raised by the employer’s filings.
The original case had been decided in July 2017 when a BALCA panel affirmed the CO’s denial of a labor certification application for Arbin Corporation on the grounds that the employer failed to list travel requirements in the mandatory Sunday newspaper advertisements. Although the CO cited the regulations at 20 CFR § 656.17(f)(3), the Board upheld the denial on the basis of 20 CFR § 656.17(f)(4).
The regulations at 20 CFR § 656.17(f)(3) state that the newspaper advertisements must: Provide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought. Arbin Corporation had placed advertisements for a Customer Support Engineer, and the job description noted that the position would “maintain and repair Arbin battery testing systems.” The CO denied the application because the advertisements did not mention “delivery of products” in the job description, even though this duty was listed on the Form 9089. The CO considered this to be a travel requirement and determined that it should have been clearly stated in the description because it was a benefit that may have interested more potential applicants.
The employer acknowledged that this was indeed a travel requirement, disputed its characterization as a benefit, and argued that it should be implicitly understood from the job title and the nature of Arbin’s battery testing systems that the work needed to be performed at client sites. The original BALCA panel agreed with the CO that the travel requirement should have been included, citing 20 CFR § 656.17(f)(4), which requires the advertisements to: Indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.
The recent en banc panel affirmed that the regulation at 20 CFR § 656.17(f)(4) was the appropriate citation for denying certification and that it was within the scope of the Board’s de novo review authority to base its decision on a different regulation than the one cited by the CO. The Board held that it was immaterial whether an applicant interpreted the travel requirement as a benefit or a duty, and agreed with the CO that it should have been included. The Board disagreed with the employer’s contention that the job title sufficiently conveyed the travel requirement; likewise it could not be assumed that job seekers would be familiar enough with Arbin’s battery testing systems to know that the systems must be maintained on site.
Interestingly, the Board asked the parties to brief whether travel outside of a set office location could be so inherently associated with a particular job title or duty, such as a plumber or delivery person, that it would be unnecessary to explicitly list travel as a requirement of the job. The American Immigration Lawyers Association (AILA) submitted an amicus brief, urging the Board to recognize not only that there are some positions where “movement outside of the office is so clearly part of the role that travel need not be disclosed,” but also that de minimus travel that does not affect the basic geographic location of the position should not be required to be included in the text of the ads. The CO countered that the regulation plainly states “any travel requirements” must be disclosed.
Ultimately the en banc panel decided that because these questions were not covered by the facts of the instant case, the panel would not address them. The Board did note “that, while § 656.17(f)(4) refers broadly to ‘any travel requirements,’ we anticipate that COs will exercise their discretion on which issues to raise with appropriate restraint.” Future cases will likely examine whether employers agree that such restraint is exercised.