BALCA Case Clarifies Minimum Experience Requirement
From: USADNEWS Volume V, Issue 2
In the case of CCG Metamedia Inc, the Certifying Officer (CO) denied certification based on the minimum experience requirement the Employer listed on their application. On Form ETA 9089, the Employer stated that the position required 2 years experience. However, the advertisements the company placed listed the experience requirement as 2-4 years, indicating a requirement that is greater than the Employer’s actual minimum requirement of 2 years.
The Employer argued that Form ETA 9089 does not allow them to list a range and therefore they could not properly list their experience requirement as 2-4 years. They asserted that their situation was similar to the matter of Federal Insurance Co., in which their application was denied because that Employer did not write the Kellogg language on its application. Citing the decision in the case, which found that if “the existing Form 9089 does not reasonably accommodate an Employer’s ability to express this attestation, we hold that it would offend fundamental due process to deny an application for failure to write the attestation on the Form 9089.” In this instance, the Employer contended, the form did not “reasonably accommodate” their attestation of the minimum experience requirement.
When the case was presented before the Board of Alien Labor Certification Appeals (BALCA), the CO argued that advertising the requirements as 2-4 years experience indicates a preference that applicants possess more than the 2 years minimum experience that the Employer listed on their application. Disputing the Employer’s claim that limitations on the Form were to blame, the CO stated that “the Employer used wording [in] its advertisements that may have discouraged applications from U.S. workers who meet the minimum requirements of the job opportunity, and therefore the Employer conducted an inadequate test of the labor market.”
BALCA concurred with the CO that this misrepresentation of the job requirements was a violation of PERM regulation 20 C.F.R. 656.17(f)(6), which requires that a newspaper advertisement must not contain “any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.” It is the duty of the Employer to ensure that all requirements are correctly and completely listed in the application. BALCA further ruled that to list a range of experience in the advertisements that exceeds the minimum requirements stated in the application “inflates the job requirements.and does not accurately reflect the Employer’s attestations on the ETA Form 9089.”
As to CCG Metamedia’s claim that they were limited by the Form itself, BALCA rejected this argument on the basis that the Form requires the Employer to state a discrete number as an actual minimum requirement. Therefore, entering a range of years would not be a valid response. Accordingly, BALCA upheld the CO’s denial of the labor certification.
Bearing this in mind, it is a good idea to clearly state the experience requirement in the ad text to avoid any potential issue with job search websites or job order postings where a range is used in a drop-down menu.