Volume VII, Issue 6 September 2013

In This Issue
1. USADWEB Donates to Red Cross Disaster Relief
2. Content Requirements for Advertisements Do Not Apply to SWA Job Orders
3. Newspaper's Headquarters Address Does Not Determine Area of Circulation
4. United States Unemployment Rate August 2013
5. PERM Processing Times as of August 5, 2013

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1. USADWEB Donates to Red Cross Disaster Relief

USADWEB donated to the Red Cross Disaster Relief Fund to help support the rescue and recovery efforts for those impacted by the devastating Colorado flooding. With clients and colleagues across the country, our hearts go out to their family and friends who are affected.

2. Content Requirements for Advertisements Do Not Apply to SWA Job Orders

The placement of a job order with the State Workforce Agency (SWA) is an extremely important part of the labor certification process and is subject to intense scrutiny to ensure that the job order complies with PERM regulations. In a recent appeal before the Board of Alien Labor Certification Appeals (BALCA), however, BALCA determined that SWA job orders are not bound by all of the regulations that apply to newspaper advertisements.

In the Matter of Chabad Lubavitch Center, the application for labor certification was denied because the SWA job order listed an experience requirement that exceeded the requirement stated on the ETA Form 9089. The ETA Form 9089 required only 24 months of experience, whereas the job order listed an experience range of “Mid-Career (2-15 years).” The employer argued that the job order submission form only provides a drop-down menu with the following options: Intern, Entry Level (0-2), Mid-Career (2-15 years), or Senior (15+ years). Because the position did not require less than two years of experience, they selected the Mid-Career level.

On this point, BALCA referred to CCG Metamedia, Inc. from 2011 which found that “[s]tating a range of experience in the recruiting materials that goes above the minimum experience requirements stated in the application inflates the job requirements in the job advertisements, and does not accurately reflect the Employer’s attestations on the ETA Form 9089. Moreover, it is in violation of the regulations.” This is an important point to bear in mind when selecting requirements on a job order or other online media, that a range should not exceed the minimum requirements.

However, the employer also argued that the regulations at 20 C.F.R. § 656.17 on which the Certifying Officer (CO) based the denial apply only to advertisements and not to SWA job orders. The CO postulated that because the job order is a part of the recruitment process, it must therefore be subject to the same regulations governing the rest of the advertisements. BALCA examined the CO’s claim and found that it was not valid. In examining Section 656.17(e)(2), BALCA found that while the section very clearly states that newspaper advertisements must satisfy the requirements of paragraph (f), it very deliberately omits applying the same statement to SWA job orders. To extrapolate that those advertising requirements should also apply to job orders is contrary to the plain language of the regulations.

BALCA took up the issue of plain language in the PERM regulations last year in the en banc decision in A Cut Above Ceramic Tile (March 2012). In that review, BALCA affirmed that the Employment and Training Administration (ETA) made a deliberate distinction between the regulations governing SWA job orders and those governing newspaper advertisements and that where the regulations omit certain language when referring to job order requirements, the omission is intentional. In that decision, BALCA quoted the Supreme Court in noting that where Congress “includes particular language in one section of a statute but omits it in another section of the same Act,” it is presumed that the omission is intentional. To extend regulations specifically related to newspaper advertising to cover SWA job orders would be to write new requirements into the regulations.

In the case at hand, BALCA reasoned that the ETA could have had an understandable motive for making this distinction between required newspaper content and job order content. As the employer mentioned, the job order form set forth a drop-down menu with pre-determined experience requirements that the employer was required to choose from. There are several examples from various state job banks where the content of the job order is not fully under an employer’s control and where they must operate within the specific confines of an individual state’s posting requirements. This would be a legitimate reason for the ETA to distinguish between requirements for newspaper advertisements compared to SWA job orders.

Due to the determination that the regulations at 20 C.F.R. § 656.17(f) do not apply to SWA job orders, BALCA ordered the CO to grant the labor certification.

3. Newspaper's Headquarters Address Does Not Determine Area of Circulation

In the Matter of Wal-Mart Stores Inc, the Certifying Officer (CO) denied the application for labor certification based on the choice of paper the employer used for their two Sunday advertisements. The employer advertised for a position of Computer Programmer in the Arkansas Democrat Gazette. The position is located in Bentonville, AR. The CO denied the application, claiming that the Democrat Gazette is primarily circulated in Little Rock, AR and therefore not appropriate as the newspaper of general circulation for Bentonville.

The employer requested reconsideration and provided documentation that the Democrat Gazette is the largest daily newspaper in the state as well as in the Bentonville area. They provided a letter from the newspaper confirming that the paper has a circulation of 33,573 in Benton County, which includes Bentonville, and that no other daily paper exists in Bentonville. The employer provided additional documentation from the Arkansas Democrat Gazette website stating that its Sunday circulation in Arkansas is greater than the Sunday circulation of all other Arkansas newspapers combined, charts from the Center for Public Integrity illustrating the circulations of newspapers within 100 miles of Bentonville, and printouts from the Mondo Times website describing the circulation and coverage of the Democrat Gazette.

Notwithstanding this documentation, the CO upheld the denial, basing the decision primarily on the fact that the newspaper is headquartered in Little Rock, which is over 200 miles away from the job location of Bentonville. The CO referred to the regulation at 20 C.F.R. § 656.3, which defines the area of intended employment as “the normal commuting distance of the place of intended employment.” The CO determined that a commute of more than 200 miles cannot be construed as normal and argued that newspapers such as the New York Times that circulate in multiple cities are still circulated within normal commuting distances.

The employer appealed the case to the Board of Alien Labor Certification Appeals (BALCA). BALCA found that the CO had misinterpreted the regulations by confusing the address where a newspaper is headquartered with its area of circulation. They determined that the Democrat Gazette was indeed the paper of general circulation for the area of intended employment and the paper most likely to bring responses from available workers. BALCA overturned the denial and ordered that the CO grant the certification.

4. United States Unemployment Rate August 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 to decrease from 7.6% in May and June to 7.4% in July and further to 7.3% in August, according to the Bureau of Labor Statistics.

5. PERM Processing Times as of August 5, 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 February 8 2013
Audits August 31 2013
Reconsideration Requests to the CO August 5 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 consistently provided efficient and reliable services in placing advertisements for labor certifications. Their legwork is invaluable when trying to coordinate multiple advertising listings in different states.

(New York, NY)


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 6 September 2013

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