One major purpose of the regulations that control the PERM recruitment process is to prevent potential US job applicants from being misled about the actual job requirements and discouraging them from applying for the job. According to federal regulation, PERM recruiting advertisements cannot have job requirements or duties that exceed the job requirements or duties on the form 9089 PERM application. Given this rule, one would think that advertisements with less strict job requirements or duties would not be a problem. However, this is not necessarily the case. Failure to use the same language on both documents may inevitably result in a denial anyway.
This is demonstrated by the decision in the BALCA case of In the Matter of IBM Corporation, decided August 27, 2013. The employer in this case published an advertisement as part of its PERM recruitment process for the position of senior management consultant. The job requirements contained in the advertisement were less restrictive than those on the PERM application Form 9089. The employer’s position was that the regulation prohibits the requirements of the advertisement from being more restrictive, not less restrictive.
In conducting the PERM recruitment process, one of the requirements is to inform US workers about the job opportunity by placing a job order for 30 days with the State Workforce Agency (SWA) that serves the area of intended employment. It has been previously held by BALCA that all advertisements, as well as SWA job orders, must disclose the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.
The PERM application Form 9089 state that the work will be performed at “various client sites throughout the U.S.” yet, the advertisement the employer placed with the SWA did not include this language. This would not appear to deter potential US job applicants away from the position because the advertisement was less restrictive than the PERM application. Nevertheless, the US Department of Labor Certifying Officer (CO) denied certification. The original basis for the CO’s denial was because it said that the employer violated 20 C.F.R. § 656.17(f)(6), which forbids the job requirements or duties contained in the SWA from exceeding those contained in the Form 9089.
The case was appealed to the Board of a Labor Certification Appeals (BALCA), which agreed with the employer’s argument that the CO should not have used that regulation as a ground for denying certification. However, the CO asserted another ground that certification should be denied on the basis of 20 C.F.R. § 656.17(f)(6), which requires the SWA job order to accurately reflect the geographic area of employment.
The employer responded that there was not enough space on the SWA job order to include the additional language “various client sites throughout the U.S.” The BALCA did not accept this defense and affirmed the CO’s denial of the employers PERM certification.
As illustrated above, PERM denials like this can be easily avoided simply by using the same language on both documents.