An important goal of the Immigration and Nationality Act (INA) is to protect U.S. workers from being displaced in the job market by foreign workers. Certain employment-based permanent residence applications therefore require the employer to obtain a Labor Certification (PERM) from the Department of Labor (DOL).
Prior to filing a permanent labor certification application for a foreign worker, U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations have specific requirements for recruiting, some of which relate to advertisements. One of the requirements is that advertisements must not contain wages or terms and conditions of employment that are less favorable than those offered to the foreign national being sponsored for permanent residence.
On December 31, 2014, the Board of Alien Labor Certification Appeals (BALCA) decided the Matter of Needham-Betz Thoroughbreds, Inc., on the issue of whether the benefit of free housing must be included in the advertisements and the Notice of Filing used in support of the labor certification application. The employer argued that silence on a particular aspect of a job does not violate the regulatory requirement not to list less favorable terms and conditions. BALCA found that a failure to include such benefits essentially results in offering potential applicants terms and conditions of employment less favorable than those offered to the foreign national being sponsored for permanent residence.
In reaching its holding, BALCA reasoned that free housing is a material benefit which would lead to more U.S. applicants for the position. The purpose of the PERM regulations is to ensure that there are insufficient U.S. workers who are able, willing, qualified and available for a job opportunity. BALCA, therefore, concluded that a more consistent interpretation of the regulation would be to view the terms and conditions of employment in the advertisement as a whole and compare them to the terms and conditions offered to the foreign national.
Interestingly, BALCA acknowledged the employer’s reliance on the DOL’s Frequently Asked Questions, which indicate that not every duty, requirement and condition of employment needs to be included in the advertisements. However, BALCA reasoned that free housing is not a standard benefit attached to a job opportunity, unlike typical compensation and benefits. Therefore, free housing would likely have been a very significant influence on potential U.S. applicants in deciding whether to apply or not, but the employer failed to test the market for such applicants.
In light of the above decision, employers need to pay even closer attention to the language used in advertisements posted for purposes of the PERM process. The above decision demonstrates the complex and ever-evolving nature of the PERM regulations and their interpretation by BALCA and DOL. It is therefore very important to counsel with an experienced immigration attorney before taking any of the steps required to obtain a Labor Certification. Please contact one of our experienced attorneys who will guide you through PERM process.