En Banc Panel Upholds BALCA Decision Regarding Content Requirements

From: USADNEWS Volume VIII, Issue 6 August/September 2014

The June issue of USADNEWS reviewed the Matter of Symantec Corporation (February 2014), which had recently been decided by the Board of Alien Labor Certifications (BALCA). In this case, the Board overturned the Certifying Officer’s (CO) denial of the labor certification application. The CO had denied the application because the employer’s posting on a job search website contained a travel requirement that was not listed on the ETA Form 9089. Under 20 C.F.R. § 656.17(f)(6), advertisements must “not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.” On appeal, the Board disagreed with the CO’s argument, finding that the content requirements at 20 C.F.R. § 656.17(f)(6) apply only to the mandatory Sunday newspaper  or professional journal advertisements and not to the additional recruitment methods required for professional positions.

USADWEB pointed out that this decision conflicted with previous BALCA decisions, such as the Matter of Credit Suisse Securities (USA) LLC (October 2010) and the Matter of IBM Corporation (August 2013), in which the Board favored a loose interpretation of the regulations and applied the regulatory language at 20 C.F.R. § 656.17(f) to all forms of recruitment. As USADWEB predicted, an en banc review was subsequently requested by the CO.

In the en banc decision, issued in July 2014, BALCA considered the plain language of the regulations, which state that section 20 C.F.R. § 656.17(f) applies to the advertisements “placed in newspapers of general circulation or in professional journals.” In other sections where this mandatory recruitment is mentioned, the regulations again cross-reference the content requirements at § 656.17(f). There exists no mention in the regulations that either explicitly or implicitly applies these same content requirements to the additional forms of recruitment that are required for professional positions, nor is there any cross-reference to that section.  Furthermore, the Preamble to the Final Rules, which was discussed in the original Symantec decision, confirms that the intention of the Employment and Training Administration (ETA) was to draw a clear distinction between the requirements for mandatory recruitment and the additional recruitment so as not to impose an additional hardship on employers in conducting these alternative steps. To impose a stricter set of guidelines on the additional recruitment after the fact, would be to counteract the ETA’s original intention.

The panel rejected the decision in Credit Suisse, on which the CO had primarily based the appeal for en banc review. In Credit Suisse, the Board had decided the content requirements at 20 C.F.R. § 656.17(f) implicitly applied to all advertisements because of “the employer’s duty to seriously recruit for the position in the labor application.” The en banc panel stated in contrast, “Unambiguous regulations must be interpreted in a manner that is consistent with the common understanding of the terms used,” and pointed out that the regulation that governs additional recruitment on a job search website, 20 C.F.R.  § 656.17(e)(1)(ii)(C), “only requires that a petitioning employer advertise the occupation involved in the application” without further stipulations as to content.

The panel rejected the CO’s contention that the Board should rely on BALCA precedent where that precedent goes against the explicit language of the regulations, and unequivocally concluded that neither BALCA nor the CO has the authority to disregard or overrule the plain text of the regulations. BALCA recommended that if the CO was dissatisfied with a regulation, the appropriate recourse would be to amend the regulations through a new rulemaking process. Additionally, if the CO believed an employer to have acted in bad faith, the CO could exercise the right to order supervised recruitment (20 C.F.R. § 656.21).  What the CO may not do is deny an application “based on a petitioning employer’s failure to comply with an unwritten requirement that has no basis in the clear text of the regulations.” Rarely has BALCA so firmly and decisively come down on one side of an issue, but the en banc decision in Symantecleaves little room for doubt as to how the regulations at 20 C.F.R. § 656.17(f) should be applied.