Header Not Part of Online Advertisement for PERM

The Board of Alien Labor Certification Appeals (BALCA) issued a decision on August 17, 2015 addressing whether an incorrect heading in an online advertisement was a valid reason for denying the PERM labor certification. In Matter of SDG Post Oak, BALCA held that an advertisement posted on a job search website in a supervised recruitment case was acceptable, despite the incorrect heading posted by the online team, rather than by the employer.

Background: PERM Advertisements for Jobs

The PERM process requires a test of the U.S. job market. An employer offering a professional position must undergo recruitment, which includes: (1) two Sunday newspapers of general circulation for the area of intended employment, (2) a State Workforce Agency (SWA) posting, (3) an internal Notice of Filing, and (4) three additional forms of recruitment. For more information on the forms of recruitment, please see the MurthyDotCom NewsBrief, PERM Labor Certification Process and Timing (03.Mar.2013).

Requirements for PERM Advertisements

PERM advertisements for professional positions must name the employer, provide directions for sending resumes, and provide a description of the position specific enough to apprise U.S. workers of the job opportunity. The ads must also provide the geographic area for the position with specificity, and must not include job requirements that exceed the actual requirements. While these specifications may seem straightforward, any error in the advertisement can result in a denial of the PERM.

PERM Denial Due to Mistake in Online Ad Heading

The employer in the SDG Post Oak case was required to undergo what is known as a supervised recruitment. Thus, the U.S. Department of Labor (DOL) directed the recruitment effort. This included approval of the employer’s advertisement text by a certifying officer (CO) prior to the employer’s placement of the ads. The employer arranged for the ads to run within the designated timeframe, using the forms of recruitment specified by the CO.

One of the required ads ran on Monster/Hotjobs.com. This online ad contained the correct text. However, unbeknownst to the employer, the Monster/Hotjobs.com website placed a heading above the ad that indicated job requirements that were inconsistent with the actual job requirements. The DOL denied the PERM labor certification as a result of the error in the ad header.

BALCA Finds Employer Not Responsible for Heading

BALCA reviewed the matter and found that the employer’s advertisement was acceptable, notwithstanding the language in the online advertisement heading. BALCA noted that the full text of the ad was on the same page as the header text. BALCA judges were of the opinion that the header language would not discourage U.S. workers from applying for the position.

Although the employer’s agent did not review the ad text until after it had been posted for twelve days, BALCA still held that employers cannot be held responsible for changes made in the heading of the online job search website. In the view of BALCA, the header is not a part of the advertisement that was placed, so the wording in the header does not serve to undercut the value of the ad by discouraging U.S. workers from applying for the position.

Importance of Complying with PERM Requirements

In Matter of SDG Post Oak, BALCA indicated in a footnote that this holding may be specific to supervised recruitment cases as the employer has less control over the advertisements. Such seemingly minor issues in advertisements can lead to PERM denials, as happened initially in this case. This can have serious consequences for both the employer and the sponsored employee.

Conclusion

In the PERM LC process, it is vital to ensure that all of the legal requirements are satisfied. Working with an experienced legal team is strongly recommended for this complex and highly regimented area of immigration law.

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