Content Requirements for Advertisements Do Not Apply to SWA Job Orders

From: USADNEWS Volume VII, Issue 6 September 2013

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.