Regulations Silent on Requiring Proof of Job Orders

From: USADNEWS Volume V, Issue 1


One of the most vital pieces of a labor certification application is the placement of a job order with the State Workforce Agency (SWA). Equally important is the documentation of that job order. Questions often arise as to what constitutes sufficient proof of the posting.

A recent Board of Alien Labor Certification Appeals (BALCA) case discussed this question in the matter of Mandy Donuts Corp. In this case, the Certifying Officer (CO) issued an Audit Notification, requesting documentation of the employer’s recruitment efforts, specifically proof of the job order placed with the SWA. The employer provided a copy of the job order form that had been faxed to the New Jersey Department of Labor (NJ DOL) and the fax confirmation sheet. The CO rejected this as proof of the job order and denied the application.

In the appeal, the employer argued that it had recruited in good faith and that furthermore the regulations do not specify what constitutes appropriate documentation of the job order. The regulations state that the employer must note the start and end dates of the job order on the Form 9089 application, but other than that, there is no mention of further documentation being required to prove the job order was posted. BALCA acknowledged that the drafters of the regulations must not have taken into consideration that such proof might be requested, but since they did not make it a requirement for the employer to retain such proof, the CO cannot require it Therefore, BALCA vacated the denial and remanded the case to the CO to grant certification.

As a standard, USADWEB provides first and last day prints of all SWA job orders. We obtain an initial print as close to the posting date as possible. In most cases, this is the day it is posted or the day it is made active. Some states use systems that do not allow the job to be viewable for a day or two, even though it is considered posted and open. In such cases, we provide a proof stating the date the job order was opened.