A controversy has been brewing at the Department of Labour over

the exact wording for online Programme Electronic Review Management

(PERM) ads.

Newspaper ads

The PERM rule, which was implemented in 2005, contains detailed

instructions for what must be included in a newspaper ad,

namely:

  • the employer's name;
  • the geographical place of employment

    (this does not have to include the street address);

  • a job description; and
  • instructions for contacting the

    employer (eg, a PO box number, fax number or other

    identifier).

The PERM rule further states that newspaper ads cannot

contain:

  • a wage rate that is lower than the

    prevailing wage rate;

  • job requirements or duties that

    exceed those listed on ETA Form 9089; and

  • wages or employment terms and

    conditions that are less favourable than those offered to US

    workers.

Professional ads

In addition to newspaper ads, occupations that are deemed to be

professional require three additional recruitment steps that may be

chosen by the employer from a list of 10 options. When the

Department of Labour planned the recruitment instructions for the

PERM process, it deliberately left out any rule pertaining to the

text of professional occupation ads, enabling employers to

elaborate them as they see fit. The recruitment process for

professional occupations is diverse and includes advertising via

websites, the radio and television, college campuses and placement

offices, employee referral programmes, ethnic and local newspapers,

private employment agencies, job fairs and trade and professional

journals.

Free to determine what to include in professional ads, most

employers have played it safe by following the rules for newspaper

ads.

Ads should always include the employer's name, the place of

employment, the job description and instructions for contacting the

employer to send a curriculum vitae. However, employers do

not always realise that while some information may be omitted, it

may not violate the law if included. These would be ads offering a

wage rate that is lower than the prevailing rate, excessive

requirements or duties or employment terms and conditions offered

to the foreign worker that are less favourable than those offered

to US workers. When employers publish optional information in the

ads, needless errors may occur and result in denial.

Online ads

In recent years the Board of Alien Labour Certification Appeals

has recognised that in practice, the content of professional ads

may not always reflect what is required for newspaper ads. In a

number of cases dating back to 2011, the board has granted

approvals to employers that did not include their address on the

same web page as their online ad. The address appeared elsewhere on

the website, but was easy to find.

In April 2016 the Board of Alien Labour Certification Appeals

considered Matter of VLS IT Consulting, Inc (2012-PER-

1769). In this case, the employer's website had included all of

the information required to notify workers of the job opportunity.

However, because the web page that contained the ad did not bear

the employer's name, the certifying officer issued a denial.

The employer responded that the website showed the employer's

name on a different page, and that job applicants could easily

navigate the site to find all of the required information. The

board then granted approval to the employer.

In addition, the en banc decision in Symantec

Corp (2011-PER-1856, July 30 2014) held that the requirements

for newspaper ads do not apply to professional recruitment

steps.

Comment

Despite the apparent liberalisation of the professional

recruitment rule, employers should always consider using the

requirements for newspaper ads detailed in 20 Code of Federal

Regulations 656.17(f)(4). Otherwise, it might be necessary to

appeal the case to obtain an approval – a process that can

take several years.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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