Retention of Dated Web Prints Crucial to Audit Response

From: USADNEWS Volume VIII, Issue 2 February/March 2014

It is crucial to obtain the necessary documentation required by the Department of Labor (DOL) to confirm the dates of online advertisements. The regulations at 20 C.F.R. § 656.17(e)(1)(ii)(B) and 656.17(e)(1)(ii)(C) require the employer to provide dated pages from the employer’s website and from a job search website to document the use of these additional recruitment methods. The employer must maintain all supporting documentation for five years and be able to provide the documentation upon request in an audit, otherwise the failure to provide the documentation will result in a denial of the labor certification [20 C.F.R. § 656.10(f), 656.17(a)(3), 656.17(e)(1), and 656.20(b)].

The Matter of DGN Technologies, Inc. demonstrates the importance of maintaining proper records. This case was forwarded to the Board of Alien Labor Certification Appeals (BALCA) after the Certifying Officer (CO) denied the employer’s application due to inadequate documentation. The employer had advertised  a professional position on their company website as one of the three additional recruitment steps. The recruitment report that the employer submitted, which was signed by the company president, identified the posting dates as November 30, 2008 to December 30, 2008. However, the copy of the job posting that they provided did not state the posting dates except for an illegible handwritten notation of the date the posting was created.  The CO denied the case because the evidence was insufficient to prove the advertisement was posted for the time period listed in the report.

BALCA discussed the matter and agreed with the CO that insufficient documentation was provided to prove the dates of the web posting.  BALCA noted that in PSI Family Services, Inc. (April 2010) the Board recognized that “[t]he regulations do not preclude an employer from providing documentation of the advertisement posted on its website in a manner other than by submitting dated printouts of the website advertisement.” The DOL FAQs even state that an employer “may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under penalty of perjury, to the posting of the job.” BALCA made certain to note, however, that there is no guarantee that the CO will accept this alternate documentation as adequate proof.

In the case at hand, the date that was written on the posting itself was illegible and no indication was made as to who made the notation. Furthermore, the recruitment report the employer provided did not qualify as an affidavit and did not identify the president as the company official responsible for posting the web advertisement. Therefore, the recruitment report did not satisfy the requirement for adequate documentation, and the denial of the application was upheld.

USADWEB understands the need for a complete audit file in order to document your recruitment advertising steps. Your advertising representative will provide you with dated proofs of the first and last available days for any online advertisements that you place through us.