Something for employers here in Ohio to be aware of when planning to file an application for Permanent Employment Certification (PERM) is the way in which they will be required to prove their recruitment efforts. One method by which that can be accomplished is use of the employer's website. As this recent Board of Alien Labor Certification Appeals (BALCA) demonstrates, employers must be versed in the nuances of proving web recruitment.
Following a November, 2007 audit, an employer looking for certification under PERM for the position of "Applications Engineer" submitted its recruitment documentation to the Certifying Officer (CO). The employer attached job listings from its website dated September 24, 2007, as well as an affidavit from a high-ranking employee certifying that he posted the job opportunity on the website from May 29, 2007, to July 19, 2007.
But certification was denied by the CO. The reason for the ruling was that the CO did not believe the employer complied with a requirement that an employer's website "be documented by providing dated copies of pages from the site that advertise the occupation involved in the application."
The CO said the employer's documentation showed only that the job was posted on Sept. 24, a date that falls outside the reported time between May and July. The employer filed for reconsideration based on a belief the affidavit of its executive should have been given more weight and that the Sept. 24 date fell within the period 30 days prior to the application being submitted.
After consideration the judge for BALCA agreed with the CO's findings. The judge found the Sept. 24 date "unpersuasive" (as it was not within the time period listed on the application) and pointed out that regulations require that employers maintain supporting documentation of all step taken in the recruitment process.
But the key to the decision was how BALCA treated the affidavit. The judge determined that while an employee affidavit can be used in place of copies of the postings, it does not guarantee such evidence will be sufficient.
Additionally, the judge felt the executive - the Vice President of Worldwide Sales - did not establish he was the one who listed the job on the company's site: "The statement of the Vice President of Worldwide Sales, included with the audit response, did not indicate that the Vice President was the official within the Employer's organization responsible for the posting of such occupations on the website."
