BALCA Affirms Use of Online Postings Through Verified Trade or Professional Associations
From USADNEWS Volume XII, Issue 6
USADWEB is often asked whether an online posting on a trade association’s website will suffice as an advertisement with a trade or professional organization, or whether the advertisement must be published in print.
The regulations at 20 C.F.R. § 656.17(e)(1)(ii)(E) state that the “use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.” As the Board of Alien Labor Certification Appeals (BALCA) found in the Matter of Pacific Data Images, Inc. (February 2018), such language in the regulations is “permissive and not mandatory,” and merely identifies one type of documentation that can be used but does not limit employers to that one method. Therefore, while employers can document the use of a professional organization with pages from newsletters or journals, they are not limited to providing proofs of print advertisements only.
Professional and trade associations have limited options for publishing in print. Many do not publish print editions on a regular or timely basis, sometimes only publishing quarterly editions with advance deadlines that are not conducive to the timeline of a PERM application. Often professional journals do not accept classified advertisements for publication. The career sections of trade association websites have become a convenient option for advertising with a professional organization.
The Department of Labor (DOL) addresses the use of electronic journals under “Acceptable Publications” on its FAQ page. It permits the use of an “electronic or web-based national professional journal” so long as an electronic version is not being used in place of a Sunday print ad. The FAQ applies to both the optional special recruitment procedures for college and university teachers per 20 C.F.R. § 656.18(b)(3) and the additional recruitment required for professional positions per 20 C.F.R. § 656.17(e)(1)(ii)(E).
USADWEB regularly uses the career section of trade association websites to satisfy the trade organization requirement with no reports of DOL audits. Nevertheless, some clients have continued to question whether the DOL officially recognizes these online postings as an acceptable use of trade and professional organizations, or whether the DOL views them as a duplication of the job search website recruitment option.
In the Matter of Prithvi Information Solutions LLC (November 2013), BALCA offers clarification on this point. The employer submitted a copy of an online posting on Dice.com as proof of recruitment through a trade or professional organization. The Certifying Officer (CO) denied the application, asserting that Dice.com is “a career website serving IT and Engineering professionals and is not a professional organization or association.” The employer argued that Dice.com is a professional organization along the lines of the American Society of Mechanical Engineers (ASME), the American Society of Civil Engineers (ASCE), Computerworld, and the Institute of Electrical and Electronics Engineers (IEEE). And yet, the employer could demonstrate no similarities between Dice.com and these other well-recognized associations beyond the career sections offered on their websites.
BALCA upheld the CO’s determination that “Dice.com is a job search website for IT professionals, not a professional organization” and affirmed the CO’s denial of the labor certification. However, in doing so, the Board did two things: it affirmed the use of online postings through recognized trade associations, and it provided some factors for determining what differentiates a trade association from a general job search website (see “Criteria for Determining a Trade or Professional Association”).
Referencing the aforementioned DOL FAQ, the Board unequivocally stated, “Since the Department of Labor allows employers to use a professional organization’s electronic journal to satisfy the additional recruitment requirements[…], the issue in this case is not whether an advertisement must appear in print, rather than online, but whether […] Dice.com is a bona fide professional organization rather than a job search website.”
The use of an online posting to fulfill the additional recruitment step for trade and professional organizations is not in dispute so long as the job is posted through a valid trade or professional association’s website.