Perm Ad Requirements

The Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) ruled in April 2010 a case concerning advertisement requirements in Perm application. In the Matter of Xpedite Technologies, Inc., a case consolidating other cases with similar situations, the employer filed Perm applications for the purpose of employment-based immigration petitions. The Department of Labor (DOL) issued notices to audit the Perm application.

After receiving the employer’s response to the audit notice, the DOL denied the Perm application on two reasons:

1. The Notice of Filing did not contain the location of the job opportunity; and
2. The employer did not provide adequate documentation of the print advertisements.

The employer filed a Motion to Reconsider asserting that they provided legible copies of newspaper advertisements. The DOL subsequently denied the application stating that although the employer provided legible copies of newspaper advertisements, those advertisements contained additional job requirements not listed on the Perm application form ETA 9089. The employer then appealed the case to the BALCA.

The BALCA opined that in a situation that the newspaper advertisements contained requirements not included in the form ETA 9089, the employer’s conditions of employment in its newspaper advertisement “were less favorable than those offered to the Alien.” The BALCA found that in such a case it was in violation to the regulations in 20 CFR 656.17(f)(7), which states that advertisements places newspaper of general circulation or in professional journals must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

The denial of the Perm application was therefore affirmed by the BALCA. It is important to make sure that in Perm recruitments, employer’s advertisements do not contain more conditions than those submitted in form ETA 9089.