Alternative Documentation Can Be Used for On-Campus Recruiting

From USADNEWS Volume XII, Issue 5

The Board of Alien Labor Certification Appeals (BALCA) determined that alternative documentation can be used for on-campus recruiting, so long as it is reasonably equivalent to the form of proof referenced in the regulations.

In the Matter of Pacific Data Images, Inc. (February 2018), the employer filed an application for labor certification for a Lead Lighter. The employer used on-campus recruiting as one of the additional recruitment methods specified under the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(D). The regulations indicate that this step “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.”

The Certifying Officer (CO) denied the application because the employer did not provide documentation of a specific notification posted by the college. Instead, the employer provided a letter from its Head of Outreach, an Outreach Travel Log, and several advertisement flyers. The letter explained the employer’s process for coordinating on-campus interviews with various schools, which are then documented in its travel log. The schools do not post a notice of the employer’s visit or open the interviews up to the general student population, but instead select students they feel would be appropriate candidates for the employer to interview. The employer also submitted email correspondence with the schools confirming the scheduled recruitment events.

The employer argued that the language in the regulation is “permissive and not mandatory,” and merely identifies one type of documentation that can be used. BALCA agreed, citing its previous decision in McKinsey & Co. (Oct 2016), which found that the language in 20 C.F.R. § 656.17(e)(1)(ii)(D) is indeed permissive and does not limit the employer to the example provided, so long as “the alternative documentation is reasonably equivalent to the primary proof required by the regulation,” according to St. Landry Parish Sch. Bd. (April 2016). Furthermore, in Micron Tech., Inc. (Jan 2014) the Board found alternative documentation to be acceptable if it “included all of the essential details regarding the on-campus recruitment with enough specificity to inform an interested U.S. applicant.”

The question, therefore, is not whether an employer may use alternative documentation, but whether that documentation “is reasonably equivalent to the primary proof required by the regulation.” In the extant case, BALCA determined that it was and ordered the case remanded for certification. The Board did note that the fact that the employer’s recruitment process was not “open” to the general student population raises the question of whether the position was open to all U.S. workers under the regulations at 20 C.F.R. § 656.10(c)(8). The CO, however, did not object to the recruitment on this basis and so BALCA did not take this point under consideration in issuing its decision.

USADWEB can assist with campus recruiting through the campus placement offices, under the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(H). This method is typically documented by first and last day printouts of the actual job posting on the college’s or university’s career center website.