Volume VII, Issue 5 July/August 2013

In This Issue
1. Department of Labor Reopens; House and Senate Reach Deal that Ends Government Shutdown
2. BALCA Case Examines General Circulation Paper for Non-Professional Position
3. Work From Home Option Must Be Included in Advertisements
4. United States Unemployment Rate July 2013
5. PERM Processing Times as of July 1, 2013


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1. Department of Labor Reopens; House and Senate Reach Deal that Ends Government Shutdown

The Department of Labor is open today after the House and Senate voted for legislation that extends the Treasury's ability to borrow money through February 7th and funds the government through January 15th. President Obama signed the bill late Wednesday night, which ends the 16-day government shutdown. The shutdown, which went into effect on October 1st, caused many government offices to close, including the Department of Labor, resulting in delays or even lapses in normal services.

The bill passed in the Senate by an 81-18 vote and in the House by 285-144. The last minute vote avoided a default on the national debt. The stock market had already begun to rally early on Wednesday when news began to circulate that an agreement had been reached.

Government offices began reopening Thursday morning. The Department of Labor now displays on its website the following message: The U.S. Department of Labor is open, and DOL welcomes back its employees.


2. BALCA Case Examines General Circulation Paper for Non-Professional Position

The question of what constitutes an appropriate paper of general circulation to fulfill the mandatory Sunday advertisement requirement for both professional and non-professional positions has long been debated. In the Matter of Capitol Building Services, Incorporated, a recent case decided before the Board of Alien Labor Certification Appeals (BALCA), the issue was taken up again.

In this case, the employer advertised for a non-professional position of Cleaning Supervisor in two Sunday editions of the Washington Examiner. The Certifying Officer (CO) denied the application on the basis that the Washington Post is a more suitable newspaper of general circulation for the Washington D.C. metro area. The employer filed a request for reconsideration based on three key arguments: that the Virginia courts have ruled that the Washington Examiner is in fact a newspaper of general circulation; that the Department of Labor (DOL) regulations do not require that the Sunday advertisements be placed in a newspaper of the highest circulation, but rather a newspaper of general circulation; and that the CO has been inconsistent in its treatment of the Washington Examiner for use in PERM cases.

The employer further argued that the Washington Examiner would be more likely to elicit responses from available workers because it is a free newspaper, as opposed to the Washington Post, which costs $2.00 for a Sunday edition. Counsel for the Washington Examiner observed that the newspaper is distributed throughout the Washington D.C. metro area and therefore the size of its circulation should not be the determining factor in its ability to bring responses.

In his reconsideration, the CO asserted that the status of the Examiner as a newspaper of general circulation was not at issue, but rather the question was whether it was the newspaper most appropriate to the occupation and to bring responses from workers who were likely to apply. Because applicants will seek out newspapers that they believe contain the types of positions for which they will apply, the CO set forth two factors that would determine the appropriateness of one newspaper over another: the nature of a newspaper’s job classified section and the size of that classified section. The CO went on to compare the two classified sections of the Washington Post and the Washington Examiner and determined that the Post contained a larger job classified section of approximately 400 or more positions compared to only 35 positions advertised in the Examiner, and that those positions represented a wide range of professional and non-professional positions whereas the Examiner primarily ran non-professional positions. Therefore the CO concluded that the Washington Examiner did not qualify as the most appropriate newspaper of general circulation.

The employer argued on appeal that advertising in the Washington Examiner fulfilled the requirement for a newspaper of general publication and that beyond that the PERM regulations do not require that an employer must determine which publication is “best” out of multiple publications available that meet the requirement. Furthermore the employer contested the CO’s use of the number of positions run in a classified section as a criterion for determining an appropriate newspaper because that criterion is not mentioned in the regulations. The employer also argued that the DOL should defer to the various states in determining what constitutes a newspaper of general circulation, in which case Virginia has determined that the Washington Examiner does meet those guidelines.

In reviewing this case, BALCA considered a previous case that dealt with the choice between the same publications. In Intercontinental Enterprises, Inc. (see the September/October 2012 issue of USADNEWS) the employer ran two Sunday newspaper advertisements for the position of Senior Food Technologist. They chose to run the advertisements in the Washington Examiner instead of the Washington Post and their application was consequently denied. BALCA upheld the denial in that case, citing the regulatory history of the PERM regulation, which states that job seekers looking for professional positions would be more likely to consult the metropolitan newspaper with the largest circulation. Therefore, for professional positions requiring advanced degrees, BALCA concluded that the newspaper with a larger circulation and more substantial classifieds section would be the more suitable option.

Contrasting that to the case at hand, BALCA noted that this job was a non-professional position that only required two years of experience. The same passage in the regulatory history goes on to state that “it would be appropriate to advertise in a suburban newspaper of general circulation for nonprofessional occupations, such as jewelers, houseworkers or drivers.” A clear distinction is made between the type of paper that is appropriate for professional and non-professional positions. The panel in Intercontinental Enterprises, Inc. already noted that the Examiner is not a mere suburban newspaper. It has a large circulation in the area of intended employment. And the CO himself pointed out that it runs advertisements for primarily non-professional positions, which the regulatory history clearly states is appropriate. BALCA also considered that the cost of the newspaper may be a factor in which paper a reader selects, but declined to comment on how strong a factor it may be. With one dissenting opinion, BALCA ordered that the alien labor certification be granted.

The case is relevant to employers who are faced with the choice between two newspapers of general circulation in the same area. For instance, when having to choose between the Chicago Tribune and the Sun Times, or the New York Times and the New York Post, employers should consider which paper will be more appropriate to the position depending on whether the position is professional or non-professional.  USADWEB can help by providing circulation figures and information on the newspapers’ classified sections.

 

3. Work From Home Option Must Be Included in Advertisements

USADWEB  often sees recruitment cases for positions that allow a work from home option. A recent Board of Alien Labor Certification Appeals (BALCA) case emphasizes the importance of including this information in the advertisements. In the Matter of Siemens Water Technologies Corp., the employer’s application was denied because the work from home option was not presented to potential applicants.

The employer listed the foreign worker’s home address as the primary worksite address on the ETA Form 9089 and explained in their audit response that the position allows for the employee to work from home and to travel to various client sites as needed. However, because this option was not stated in the advertisements, the Certifying Officer (CO) determined that the advertisements contained “wages or terms and conditions of employment that are less favorable than those offered to the alien,” in violation of the regulations at 20 C.F.R. § 656.17(f)(7). Because of this, the CO concluded that the employer could not attest that the position had been clearly open to any U.S. worker.

The employer argued that the regulations do not require the advertisements to identify the location of employment as a home office, nor is there any prohibition on using a home address in recruitment efforts. They pointed to the minutes from the Department of Labor’s (DOL) Stakeholders Liaison Meeting on March 15, 2007, which advised that the foreign national’s home address may be used as the primary workforce on the ETA Form 9089 and that this can be explained during an audit.

BALCA underscored the employer's failure to address the more pertinent issue of not offering a work from home incentive in the advertisements. By only listing the job location as “Houston, TX,” the advertisements gave the impression that applicants would be restricted to working only from Houston. While the job location address does not need to be included, the advertisements must advise applicants of any travel requirements and where applicants will likely have to reside. By not indicating that applicants could work from home, the advertisements gave a restrictive impression of where applicants would have to reside to perform the job. This constituted work conditions less favorable than those offered to the alien. Therefore, BALCA upheld the denial of the application.

4. United States Unemployment Rate July 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 rose slightly from 7.5% in April to 7.6% in May, according to the Bureau of Labor Statistics.

5. PERM Processing Times as of July 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 January 24 2013
Audits July 31 2012
Reconsideration Requests to the CO July 1 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 makes placing ads for the labor certification process extremely easy. They assist in finding the appropriate placement for newspaper ads and radio commercials, which is extremely helpful in rural areas. The agency also advises on the length of ads, provides estimates for clients, and also provides an extremely user friendly payment link for clients. USADWEB offers exceptional customer service and follow-up on ad placement, saving valuable time and money for their clients.

(Atlanta, GA)


About USADWEB

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 over 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 5 July/August 2013


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ADNEWS Blast is the eNewsletter from USADWEB, LLC, providing updates on immigration ad placement services. This bulletin is not sent unsolicited. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of USADWEB's services. To unsubscribe, please click here.

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