BALCA Examines Preamble When Debating Content Requirements

From: USADNEWS Volume VIII, Issue 4 June 2014

The content requirements at section 20 C.F.R. § 656.17(f) have long been the subject of much debate. The Board of Alien Labor Certification Appeals (BALCA) has returned conflicting decisions regarding these requirements and whether or not they apply to all areas of recruitment. The requirements specifically state that they apply only to advertisements placed in “newspapers of general circulation or in professional journals,” and in the Matter of Chabad Lubavitch Center (July 2013) the Board upheld a strict adherence to the language of the regulations.

However, in both the Matter of Credit Suisse Securities (USA) LLC (October 2010) and the Matter of IBM Corporation (August 2013), BALCA interpreted the regulations according to the overall intentions of the labor certification process, which require that the employer must clearly apprise job seekers of the available position in order to perform a good faith test of the labor market. Based on this standard, BALCA determined in both cases that it was appropriate to expand the scope of the regulations at 20 C.F.R. § 656.17(f) to include all advertisements placed in connection with a labor certification application.

The Board took the issue up again in the Matter of Symantec Corporation, in which the Certifying Officer (CO) denied the application on the basis that the advertisement placed on a job search website contained a travel requirement that was not listed on the ETA Form 9089. The CO cited 20 C.F.R. § 656.17(f)(6), which prohibits an advertisement from including any job duties or requirements that are not listed on the application.

The employer contended that section 20 C.F.R. § 656.17(f)(6) applies solely to advertisements placed in newspapers of general circulation and in professional journals, and that it therefore does not apply to additional methods of recruitment. In fact, the employer argued, it was necessary for the Employment and Training Administration (ETA) to add a separate provision in order to expand these requirements to include notices of filing, which otherwise would not have been covered by the strict language. No additional regulatory language was added to include any other recruitment steps.  Furthermore, the Preamble to the regulations states that the additional recruitment steps only need to advertise the occupation involved, and not the specific job opportunity, thus further limiting the scope of the section in question.

In any case, the employer pointed out that the job posting was for multiple positions, some of which may or may not require travel. Therefore, even according to section 20 C.F.R. § 656.17(f), the advertisement did not violate the regulations. The question of certain job requirements applying to some but not all positions when multiple jobs are advertised in a single posting was previously addressed and upheld by BALCA in the Matter of Microsoft Corporation (February 2012). The CO nevertheless argued that even the possibility of a job requiring travel could have a dissuasive effect on job seekers who are unwilling to travel.

BALCA did not find it necessary to address this latter point, deciding the case instead based on the primary issue of the requirements at 20 C.F.R. § 656.17(f). In its discussion, the Board acknowledged the previous decision in Credit Suisse Securities, which expanded the scope of the regulations. It also referenced a previous en banc ruling in East Tennessee State University (April 2011), which concluded that “although the regulations are silent as to the applicability of section 656.17(f) to the content of additional recruitment steps for professional occupations, we agree….that such a recruitment must not include requirements not listed on the Form 9089.” In the instant case, BALCA rejected both prior decisions, stating that “we do not have the authority to read into the regulations to ensure a result that more effectively aligns with the purpose of the regulations, and if the ETA did in fact intend section 656.17(f) to apply to additional recruitment steps, it can amend the regulations to expressly state so.” BALCA explained it’s rejection of the en banc panel decision in East Tennessee by noting that the Board did not analyze the issue in depth at the time.

In reaching its decision, BALCA applied the same analysis that was used in Chabad Lubavitch Center. The fact that the ETA added language to expand the advertising requirements to include notices of filing, and did not include similar language to cover any additional recruitment steps, indicates that the requirements in 20 C.F.R. § 656.17(f) were indeed intended to only apply to newspapers of general circulation and professional journals as explicitly stated.

For what appears to be the first time in connection with this debate, the Board also examined the language of the Preamble to the Final Rules. The Preamble states:

We believe the additional recruitment steps represent real world alternatives…Additionally, it should be noted the alternative recruitment steps only require employers to advertise for the occupation involved in the application rather then [sic] for the job opportunity involved in the application as is required for the newspaper advertisement. Allowing employers to recruit for the occupation involved in the application should also work to minimize employer costs to conduct special recruitment efforts solely to satisfy the alternative recruitment steps. In sum, we do not believe the cost to employers of the additional recruitment steps will be significant.

BALCA recognized the clear distinction that the Preamble draws between requirements that apply only to mandatory newspaper advertisements and those that apply to additional recruitment methods. Clearly the intention of the ETA was not to impose an additional hardship on employers in conducting these alternative steps.

Based on this in-depth analysis of the language and intent of the regulations, placed within the context of the Preamble, BALCA ordered that the CO grant the employer’s application for labor certification. It will be interesting to see how the matter continues to play out in subsequent cases, and whether a formal en bancreview will take place.