In the application of Labor Certification, currently under the “Perm” program, the job requirements must be consistent through out the recruitment process and in the application form.
In the Matters of Oracle America, Inc., the employer filed a Labor Certification Application for the position of “Software Engineer.” The application was denied by the Certifying Officer of the Labor Department on the ground that in the recruitment process, including in the Notice of Filing, travel was listed as a job requirement for the position.
The Notice of Filing is a notice that must be posted for at least ten consecutive business days at the facility or location of the employment. Per Perm regulations, the Notice of Filing must contain the information requirement for advertisements in the recruitment process. During the recruitment for the position of “Software Engineer,” travel was included in the job requirements.
Yet in the application form 9089 submitted to the Labor Department, travel was not listed as a job requirement. In the audit ordered by the Certifying Officer, this discrepancy caused the application to be denied.
The employer argued that the Notice of Filing covered multiple positions, and that only some of the positions may require travel, and such travel would be only incidental. After thorough analysis, the Board of Alien Labor Certification Appeals (BALCA) did not agree with the arguments and ruled for the Labor Department. A potential job applicant for the position can be easily confused by the wording in the Notice of Filing and believe that the position needs travel as a requirement.
It is therefore very important to carefully examine all the job requirements in the recruitment process to be consistent with the requirements in the application form in Perm application.
