Volume VIII, Issue 5 July 2014

In This Issue
1. Boston Conference Offers Un-"Common" Fun
2. Congratulations to iPad Winner!
3. BALCA Tackles Issue of Local Newspapers Again
4. United States Unemployment Rate June 2014
5. PERM Processing Times as of July 8, 2014


Clients' Comments Corner:
See what our clients are saying about us!


1. Boston Conference Offers Un-"Common" Fun

USADWEB enjoyed spending time with familiar clients who have become old friends, as well as meeting new clients at the AILA Conference in Boston. Our booth became quite lively as we challenged attendees to the bean bag toss. Many of our clients impressed us with their skills in sinking the bean bag through the hole on the first try!

We got to check out the sights in Beantown during the conference, especially from the Skywalk Observatory in the Prudential Center. The Public Garden with its swan boats, ducklings, and rose gardens afforded many picturesque views. And what visit to Boston would be complete without walking the famed Freedom Trail, through Faneuil Hall, down to the Old North Church.

We'll see you next year when the AILA Conference comes to our own backyard, in the National Harbor, MD.

2. Congratulations to iPad Winner!

Congratulations to Gregory Wald from San Francisco, CA, who won the USADWEB drawing for an iPad at the AILA Conference in Boston.

3. BALCA Tackles Issue of Local Newspapers Again

The regulations at section 20 C.F.R. § 656.17(e)(1)(ii) require an employer to advertise a professional position using three alternative recruitment methods, in addition to the mandatory placement of two Sunday advertisements in a newspaper of general circulation and the job order placed with the State Workforce Agency (SWA).  There are ten options that may be used to satisfy one of the three additional methods, one of which is the placement of an ad in a local or ethnic newspaper [20 C.F.R. 656.17(e)(1)(ii)(I)]. The regulations do not give much further guidance on this step, and recently it has become the focus of greater scrutiny.

In the Matter of Delta Search Labs, Inc., the Certifying Officer (CO) denied the employer’s application for labor certification on the grounds that the advertisement in the local newspaper did not satisfy the regulations.  The employer had advertised in a weekday edition of the Boston Globe, the same paper it used as the paper of general circulation for its Sunday advertisements.  The CO argued that the use of the same publication for the local paper constituted a duplication of efforts and did not qualify as a separate recruitment step.

The employer contested the denial, arguing that the regulations do not stipulate that the local and general newspapers must be different publications.  In a good faith effort to advertise in the paper most appropriate to bring responses from qualified workers, the employer had selected the Boston Globe as the best choice for a local paper. The fact that it also qualifies as the paper of general circulation does not preclude it from being used also as a local edition, considering that its local circulation figures are greater than any of the competing newspapers in the area.  Furthermore, the circulation figures of the Sunday edition of the Globe are different from its daily circulation, indicating that the employer did succeed in reaching two different populations.

The case was forwarded to the Board of Alien Labor Certification Appeals (BALCA), which examined the FAQs that the Department of Labor (DOL) posted on the Office of Foreign Labor Certification’s website. The FAQs state that each advertisement step must be separate and distinct, and cannot be a duplication of a previously used method. “Why must the advertisement medium be different in order for advertisements to be counted as additional steps?” the FAQs ask. It is because the purpose of requiring the use of three additional methods “is to ensure that the greatest number of able, willing, qualified, and available U.S. workers are apprised of the job opportunity.”

The FAQs specifically state, as an example of duplication, that a third advertisement in the same newspaper of general circulation cannot be used to qualify as a local or ethnic publication.  BALCA considered, however, that this does not address the issue of “whether one publication could, based on its daily and weekend circulation figures, serve as both a local and general circulation publication.” The CO himself did not argue that the Boston Globe did not qualify as both a general and a local paper. Therefore BALCA upheld the employer’s argument that as long as a publication qualifies as both, the regulations do not prohibit the use of the same newspaper as both a newspaper of general circulation and a local or ethnic newspaper.  Nothing in the preamble to either the Proposed Rule or the Final Rule prevents this.  In fact, local and ethnic papers were not even included in the Proposed Rule as one of the alternative recruitment options. This method was later added to the Final Rule with no further instructions other than the caveat that the paper must be “appropriate for the job opportunity.”

The Board hedged their decision in this case.  They reversed the denial of the labor certification based on the employer’s contention that the use of the same newspaper as both a local and a general paper is not necessarily a duplication of efforts.  However they declined making a determination as to whether the Boston Globe actually does qualify as both a local and general circulation newspaper.  Because the CO declined to argue this point, BALCA felt it went beyond the scope of the appeal for them to address it. Therefore, the decision states merely that the CO could not deny the employer’s application without first determining whether or not the Boston Globe qualified as a local paper.

The overall issue remains unresolved.  BALCA established that a single publication may qualify as both a local and general circulation paper, but what criteria determines whether it does or not?  This is similar to BALCA’s decision in the Matter of Symrise Inc. (May 2012), in which the CO denied the employer’s application because the employer had advertised in the Bergen Record as both the paper of general circulation and the local newspaper.  Similar arguments were made, but the CO did not comment on whether the Bergen Record qualifies as both paper types.  The Board overturned the denial, but declined to offer any further guidance on the issue. This leaves the question open ended, and future cases will determine whether the DOL challenges the use of the same paper for Sunday and local advertisements on the basis of whether the paper actually meets the criteria for both.

In keeping with a conservative approach, USADWEB will always select a different publication to satisfy the Sunday and local advertising requirements, unless directed otherwise.

4. United States Unemployment Rate June 2014

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 decreased slightly in June to 6.1% from 6.3% in May, according to the Bureau of Labor Statistics.

5. PERM Processing Times as of July 8, 2014

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 2014
Audits February 2013
Reconsideration Requests to the CO July 2014
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.

(Seattle, WA)


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 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 VIII, Issue 5 July 2014


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