Volume VII, Issue 3 April/May 2013

In This Issue
1. Government Shutdown Considered "Extraordinary Circumstance" if Filing Delays Resulted
2. California Workforce Changes Job Posting Site
3. BALCA Case Raises Questions on the Use of Appropriate Local Papers
4. Use of Local and Ethnic Papers Challenged by DOL Audits
5. United States Unemployment Rate April 2013
6. PERM Processing Times as of April 1, 2013

Clients' Comments Corner:
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1. Government Shutdown Considered "Extraordinary Circumstance" if Filing Delays Resulted

The U.S. Citizenship and Immigration Services (USCIS) Public Engagement Division announced the following:

"If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements."

For more information, please visit www.uscis.gov.

2. California Workforce Changes Job Posting Site

In March the California State Workforce Agency (SWA) changed the site that it uses for employers to post job orders. The new site uses a system that is similar to that used by states such as Florida, Maryland, and Virginia.

As with the old CalJobs site, the new system requires employers to register for an account but can sometimes take up to three business days for the account to be approved. New jobs are also placed on an initial Veteran’s hold for the first posting day. When California first made the switch, the system allowed jobs to be entered without displaying salary information. However, in the past few weeks California modified the system to require salary information to be listed and displayed to job seekers.

Any accounts that were previously registered under the old CalJobs system have to be reregistered through the new site. In some cases USADWEB can obtain a new login for previously registered accounts.

3. BALCA Case Raises Questions on the Use of Appropriate Local Papers

In recent months, the Department of Labor (DOL) has more frequently scrutinized the use of local papers as an additional recruitment method. In the Matter of Symrise Inc., a recent case decided by the Board of Alien Labor certification Appeals (BALCA), the Certifying Officer (CO) denied the employer’s application because they used the same newspaper for both their Sunday advertisements and for an additional local or ethnic paper.

The employer ran two Sunday advertisements in the Bergen Record as well as one weekday ad. The CO asserted that the use of the same paper to fulfill two recruitment methods amounted to a duplication of steps and therefore did not satisfy the regulations at 20 C.F.R. § 656.17(e)(ii) that the employer must select “three additional recruitment steps.”  The employer argued that the DOL recognizes the dual use of publications by permitting the use of online advertisements run on a newspaper’s website to satisfy the job search website requirement even though the online ads are associated with the same newspaper being used for the Sunday ads.

The CO contended that the dual use of a newspaper and newspaper's website was an exception and that the primary concern is that each of the additional recruitment steps should target slightly different application populations. The employer submitted documentation showing that the weekday circulation of the Record was substantially greater than the other local newspapers in the area, but the CO responded that the circulation figures were not a factor in determining an appropriate local paper. An employer could not use an additional ad in the newspaper of general circulation to substitute for an ad in a local or ethnic newspaper.

In reviewing the case, BALCA took a different approach. BALCA posed the question of whether the same newspaper that met the criteria for a general circulation newspaper could also qualify as a local newspaper. If so, the additional advertisement would not be a duplication of a step.

The CO cited the FAQ response that “the purpose of requiring the employer to use three additional recruitment steps is to ensure the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity.” BALCA noted that an FAQ response is not a regulation and therefore cannot impose the same requirements. Furthermore, BALCA concluded that the FAQ in question still did not address the question of whether one newspaper can ever be considered both a general and a local paper.

BALCA also noted that neither the preamble to the Proposed Rule nor to the Final Rule offer any guidelines on the choice of a local or ethnic paper except to state that it must be “appropriate for the job opportunity.”  In fact, BALCA stated, “the regulations are wholly devoid of any factors used in determining whether a newspaper is a ‘local’ newspaper.” In light of the lack of guidance on this issue, BALCA vacated the denial and remanded the case to the CO to determine whether the Record met the criteria of both a local newspaper and a newspaper of general circulation.

The case raises more questions than it answers. What factors do determine the appropriateness of a local or ethnic newspaper? Can the same newspaper satisfy the criteria as both a local paper and the paper of general circulation?  In cases where a parent company publishes both the major newspaper and a community issue, what are the guidelines for treating them as separate publications?

USADWEB maintains a conservative approach, unless directed otherwise by our clients. In the case of community newspapers that are published by the newspaper of general circulation, we look to ensure that the circulation of the two papers is not identical, as discussed in a previous NewsBlast article (Parent Publishers: When Sunday Papers and Community Papers Have the Same Publisher). USADWEB will stay aware of new decisions that are made to flesh out answers to these questions.

4. Use of Local and Ethnic Papers Challenged by DOL Audits

The use of local and ethnic papers has come under increased scrutiny by the Department of Labor (DOL) in the past year. This has presented unusual challenges for employers and attorneys filing labor certification appeals, forcing them to navigate around potential audits without any clear guidance.

The regulations at 20 CFR § 656.17(e)(1)(ii)(I) state only: “The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement.” No mention is made about choosing an appropriate newspaper, and no guidelines are provided for determining what an appropriate local or ethnic paper would be. Nevertheless, denials are being issued on the basis that the choice of paper was not appropriate.

Furthermore, the DOL seems to have established a specific list of criteria for determining what qualifies as an appropriate local or ethnic paper:

  • The newspaper should reach the greatest number of qualified and available workers
  • The newspaper must be known to contain advertisements for similar or the same job opportunities
  • The newspaper must have a substantial classifieds section including both professional and non-professional positions
  • The newspaper must be “most likely to bring responses from available U.S. workers”
Some of these criteria seem to contradict the DOL’s position in the Matter of Symrise Inc., where the employer attempted to use the Bergen Record to fulfill both their Sunday advertising and an additional recruitment step. In their appeal, the employer argued that the Record was an appropriate choice as a local newspaper because it had a much greater circulation where the job was located than the other local community newspapers. This suggests that the newspaper would reach the greatest number of workers and would most likely bring the most responses from job seekers. The Certifying Officer (CO) responded that circulation figures were not a factor in determining an appropriate local paper.

The catch-22 that this situation creates is that the DOL seems to be auditing newspaper choices against a standard that is impossible to quantify. If circulation is not a factor in determining an appropriate local newspaper, then how do you ensure that you’ve met the DOL’s standard that the newspaper must reach the most qualified or available applicants? If the purpose of the local and ethnic newspaper is to reach a different application population than the general newspaper, as the DOL argued in Symrise, how does the employer reconcile that goal with the additional task of selecting a paper with most substantial classified section?

The lack of clarity on these points leaves employers with little concrete guidance other than to follow the general “good faith” mandate. USADWEB is ready to assist by researching various newspaper options for free, to help you determine an appropriate local or ethnic paper for your cases that can withstand a potential audit.


5. United States Unemployment Rate April 2013

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The unemployment rate continued its decrease over the past few months from 7.7% in February to 7.6% in March, and decreasing again in April to 7.5%, according to the Bureau of Labor Statistics.

6. PERM Processing Times as of April 1, 2013

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews December 10 2012
Audits June 30 2012
Reconsideration Requests to the CO April 4 2013
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

Clients' Comments Corner

USADWEB has provided consistently excellent service to our firm and is a critical partner in helping us manage the labor certification process to serve our clients.

(Law Office, Seattle, WA)


USADWEB, LLC. is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For more than half a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume VII, Issue 3 April/May 2013

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