This month the Board of Alien Labor Certification Appeals ruled that all employer advertisements for a position must conform to the Department of
Labor's requirements in order for it to qualify for Permanent Labor
Certification (PERM).
On Oct. 19 BALCA upheld the denial of a 2007 Employer's Application for
Permanent Employment Certification filed by Credit Suisse Securities. An
administrative judge ruled Credit Suisse's month-long web advertisement for
a IT position "did not direct applicants to send resumes to the employer or
provide a description of the vacancy."
Credit Suisse wanted one of its foreign employees to be able to work in the US
on a permanent basis. Under PERM, an employer must "attest" the job has
been clearly open to American citizens and is required to take several good-faith steps to recruit U.S. workers.
In September of 2009 a Certifying Officer (CO) denied Credit Suisse's
application for the position of "Computer Software Engineers, Application"
at its Research Triangle Park, North Carolina location. The CO took issue with
several components of the application, including a discrepancy with the wage
offered and documentation for one of its Sunday newspaper advertisements.
But the judge based the decision using only on the additional recruitment step
of advertising the position on Credit Suisse's own website.
From July 10 to Aug. 17, the Credit Suisse website listed that it had
employment opportunities in the areas of "Alternative Investments; Equities;
Finance, Administration & Operations; Fixed Income; Information Technology;
Investment Banking; and Private Banking USA." The site then directed
interested parties to visit another section of its website where it mentioned
opportunities available at Research Triangle Park in fields including
"Information Technology; Financial Accounting; Operations; Product Control;
and Accounts Payable."
Credit Suisse thought its advertisement was sufficient since it made U.S.
job-seekers aware of the date of the posting, the location and told them the
company was interested in "staffing qualified information technology
professionals" at the location.
The judge disagreed. The decision pointed out Credit Suisse's website did
not ask for resumes or provide a detailed job description.
The judge ruled: "The website advertisement is merely a generalized list of
several broad and vague areas of employment and does not contain the
information required under the regulations to apprise U.S. workers of the job
opportunity in the labor application."
The nature of this decision and the length of time it took to move through the system illustrates the difficulty inherent with a nuanced certification process. Effective navigation through PERM requires experienced legal counsel.
