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Immigration Law
BALCA upheld denial for employer’s failure to disclose travel requirements
      Browse: 961      Date: 12-19-2015

The employer, IT Works International, Inc. filed an Application for Permanent Employment Certification (ETA Form 9089) sponsoring the Alien for permanent employment in the United States for the position of “Sales Manager - Technical.”

While the Employer attested on the Form 9089 that the position would require work at “various unanticipated locations throughout the U.S,” the Employer’s newspaper advertisements did not disclose the travel requirements.

The Certifying Officer (“CO”) issued an audit notification and subsequently denied certification.

In its request for reconsideration, the Employer argued that its newspaper advertisements “increased the chances” of qualified U.S. workers applying because some qualified potential applicants who initially would not be willing to relocate might reconsider after an employer had the opportunity to interview them.” The CO reconsidered and affirmed the denial of certification, finding that the Employer’s advertisements may “artificially exclude qualified U.S. workers seeking an employment opportunity with domestic travel.

DISCUSSION

20 C.F.R. § 656.17(f) (7) provides that newspaper advertisements placed in connection with labor certification applications must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” Additionally, advertisements must “indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” 20 C.F.R. § 656.17(f)(4). 

The Office of Foreign Labor Certification has clarified through the Frequently Asked Questions section of its website what geographic information should be included in advertisements:

Does the job location address need to be included in the advertisement?

No, the address does not need to be included. However, advertisements must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity. Employers are not required to specify the job site, unless the job site is unclear; for example, if applicants must respond to a location other than the job site, or if the employer has multiple job sites.

In this case, the Employer’s failure to disclose the job’s travel requirement in the newspaper advertisements is a clear violation of Section 656.17(f)(4). As pointed out by the Employer, travel can be considered either a benefit or a burden depending on the individual applicant, and therefore not including travel as a term of employment does not necessarily make the position “less favorable.”

A CO has the authority to deny certification based on Section 656.17(f)(7) when an Employer fails to disclose a job’s travel requirement in the newspaper advertisements. Although not every term and condition need be included in advertisements, it is clear through the regulations and FAQs that travel requirements always need to be included in advertisements. Accordingly, BALCA affirm the CO’s denial of labor certification in this matter.

ATTORNEY'S COMMENTS

Employers are advised to follow the FAQ, which is not a regulation but only guidance. We must prepare PERM applications defensively; always trying to stay one step ahead of the DOL and imagine new reasons for denial and new reasons to discount previously upheld methods. If there is anything unusual about the offered position, the employer should include it in the advertisements. This includes work from home benefits; housing benefits; travel; relocation; on call hours; week-end employment; free day care or other economic benefits.

Source: AILA