Before permanently employing a foreign worker, employers must certify that there are no U.S. workers available for the position by performing specified recruitment steps in order to receive a labor certification. The employer bears the burden of proving that it conducted the mandatory recruitment steps as a good faith effort to confirm that there are no US workers available before hiring a foreign worker. There are three mandatory recruitment steps that every employer must follow. First, the employer must post the job with a state workforce office for 30 days. Second, the employer must post an internal notice of the employer’s intent to hire a foreign worker. Third, the employer must post the job announcement in a Sunday newspaper that is in general circulation in the area of proposed employment for two weeks. If the position that the employer seeks to fill is “professional,” then the employer must choose an additional three of the ten recruitment steps listed in 20 C.F.R. § 656.17(e)(1)(ii)(A)-(J). One of the options is to post the position announcement on the employer’s website. Another option is to post the job opportunity through a job search website other than the employer’s website. As evidence of these options, the employer usually must provide dated printouts of the webpages showing the job advertisement, but other evidence, such as affidavits, may be acceptable. It is the employer’s duty to prove that all of the regulatory labor certification requirements have been satisfied before the labor certification may be granted.
In a decision of Board of Alien Labor Certification Appeals case, issued on December 30, 2013, the Administrative Law Judge (“ALJ”) affirmed a denial of a labor certification because the employer in that case failed to meet the regulatory recruitment requirements. (In the Matter of The Dallas Morning News, L.P., BALCA Case No.: 2011-PER-02302, December 30, 2013)
In that case, the Certifying Officer (“CO”) denied the labor certification in the grounds that the employer did not satisfy the three additional recruitment steps required for a professional position. Two of the three recruitment steps that the employer elected to perform were to post the job opening on the employer’s website and to post the job announcement on an external job search website. The employer posted the job opening to Yahoo’s HotJobs, which is an online career management website containing job listings. In addition, at the bottom of the homepage of the employer’s website, a “careers” hyperlink redirected job seekers to the employer’s profile and job listings on Yahoo’s HotJobs’ website. The CO denied the labor certification based on a finding that the employer did not adequately document that it posted the job opening to its website.
Upon filing a request for reconsideration, the employer submitted an affidavit attesting that the employer entered into a contract with HotJobs whereby the career section of the employer’s website was linked to HotJobs’s website. Therefore, if a potential job seeker clicked on the “careers” tab on the employer’s website, it would redirect that job seeker out of the employer’s website and to the employer’s profile and job openings listed on HotJobs.