Volume VIII, Issue 6 August/September 2014

In This Issue
1. En Banc Panel Upholds BALCA Decision Regarding Content Requirements
2. United States Unemployment Rate August 2014
3. PERM Processing Times as of September 3, 2014


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


1. En Banc Panel Upholds BALCA Decision Regarding Content Requirements

The June issue of USADNEWS reviewed the Matter of Symantec Corporation (February 2014), which had recently been decided by the Board of Alien Labor Certifications (BALCA). In this case, the Board overturned the Certifying Officer’s (CO) denial of the labor certification application. The CO had denied the application because the employer’s posting on a job search website contained a travel requirement that was not listed on the ETA Form 9089. Under 20 C.F.R. § 656.17(f)(6), advertisements must “not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.” On appeal, the Board disagreed with the CO’s argument, finding that the content requirements at 20 C.F.R. § 656.17(f)(6) apply only to the mandatory Sunday newspaper  or professional journal advertisements and not to the additional recruitment methods required for professional positions.

USADWEB pointed out that this decision conflicted with previous BALCA decisions, such as the Matter of Credit Suisse Securities (USA) LLC (October 2010) and the Matter of IBM Corporation (August 2013), in which the Board favored a loose interpretation of the regulations and applied the regulatory language at 20 C.F.R. § 656.17(f) to all forms of recruitment. As USADWEB predicted, an en banc review was subsequently requested by the CO.

In the en banc decision, issued in July 2014, BALCA considered the plain language of the regulations, which state that section 20 C.F.R. § 656.17(f) applies to the advertisements “placed in newspapers of general circulation or in professional journals.” In other sections where this mandatory recruitment is mentioned, the regulations again cross-reference the content requirements at § 656.17(f). There exists no mention in the regulations that either explicitly or implicitly applies these same content requirements to the additional forms of recruitment that are required for professional positions, nor is there any cross-reference to that section.  Furthermore, the Preamble to the Final Rules, which was discussed in the original Symantec decision, confirms that the intention of the Employment and Training Administration (ETA) was to draw a clear distinction between the requirements for mandatory recruitment and the additional recruitment so as not to impose an additional hardship on employers in conducting these alternative steps. To impose a stricter set of guidelines on the additional recruitment after the fact, would be to counteract the ETA’s original intention.

The panel rejected the decision in Credit Suisse, on which the CO had primarily based the appeal for en banc review. In Credit Suisse, the Board had decided the content requirements at 20 C.F.R. § 656.17(f) implicitly applied to all advertisements because of “the employer’s duty to seriously recruit for the position in the labor application.” The en banc panel stated in contrast, “Unambiguous regulations must be interpreted in a manner that is consistent with the common understanding of the terms used,” and pointed out that the regulation that governs additional recruitment on a job search website, 20 C.F.R.  § 656.17(e)(1)(ii)(C), “only requires that a petitioning employer advertise the occupation involved in the application” without further stipulations as to content.

The panel rejected the CO’s contention that the Board should rely on BALCA precedent where that precedent goes against the explicit language of the regulations, and unequivocally concluded that neither BALCA nor the CO has the authority to disregard or overrule the plain text of the regulations. BALCA recommended that if the CO was dissatisfied with a regulation, the appropriate recourse would be to amend the regulations through a new rulemaking process. Additionally, if the CO believed an employer to have acted in bad faith, the CO could exercise the right to order supervised recruitment (20 C.F.R. § 656.21).  What the CO may not do is deny an application “based on a petitioning employer’s failure to comply with an unwritten requirement that has no basis in the clear text of the regulations.” Rarely has BALCA so firmly and decisively come down on one side of an issue, but the en banc decision in Symantec leaves little room for doubt as to how the regulations at 20 C.F.R. § 656.17(f) should be applied.

2. United States Unemployment Rate August 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 rose from 6.1% in June to 6.2% in July. However it decreased again in August to 6.1%, according to the Bureau of Labor Statistics.

3. PERM Processing Times as of September 3, 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 April 2014
Audits March 2013
Reconsideration Requests to the CO September 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

Using USADWEB has made the PERM recruitment process run much more smoothly for our firm and our clients. Before being introduced to USADWEB, we either managed the recruitment logistics ourselves or depended on clients to assume that responsibility. Having experienced the inefficiencies of both of these approaches, we now simply go with the efficient and hassle-free use of USADWEB. With USADWEB, I know the ads will be placed correctly and on time, in a manner consistent with compliance, and at a price that even my smallest clients can afford. And the best part about it is that we no longer have to chase tear sheets. USADWEB does all the legwork for us, and provides the documentation we need on time.

(Austin, TX)


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 VIII, Issue 6 August/September 2014


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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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