On July 30, 2014, the Board of Alien Labor Certification Appeals (BALCA), in Matter of Symantec, decided the issue of whether a Certifying Officer may deny an Application for Permanent Employment Certification (ETA Form 9089) for a position involving a professional occupation if one of the “additional” recruitment steps does not comply with the advertising content requirements in 20 C.F.R. § 656.17(f)(6). BALCA found that a Certifying Officer may not deny certification on this basis.
Before an employer may file an application under the Permanent Employment Certification (PERM) process, it must test the labor market to ensure that there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the position for which the employer seeks certification. If the application involves a professional occupation, then the petitioning employer must conduct mandatory recruitment steps required by § 656.17(e)(1)(i) and three of ten additional recruitment steps enumerated in § 656.17(e)(1)(ii). Newspaper and professional journal advertisements placed to fulfill the mandatory recruitment steps must comply with the advertising content requirements in § 656.17(f).
In Matter of Symantec, the employer had conducted three additional recruitment steps. However, one of the advertisements posted, pursuant to the additional recruitment steps, contained job requirements that were more restrictive than the requirements described on the ETA 9089. The Certifying Officer denied the application stating that the additional professional recruitment steps contained job requirements or duties which exceeded the job requirements or duties listed on the ETA Form 9089.
BALCA reversed the denial and held that the additional recruitment steps need not comply with the mandatory recruitment content requirements. It reasoned that the regulation that governs the additional recruitment step at issue in the case, § 656.17(e)(1)(ii)(C), only requires that a petitioning employer advertise the occupation involved in the application. In holding so, BALCA disagreed with the conclusion of one of its previous panel decisions.