A decision made this month by the Board of Alien Labor Certification Appeals (BALCA) highlights how the continually changing world of internet technology influences the way visa law is interpreted. Our neighbors here in central Ohio need to be aware of the minute details certifying officers (CO) evaluate as they examine visa petitions.
In October of 2007 an employer had its application for a Permanent Employment Certification for the position of “Dentist” audited. The employer was instructed to provide information related to recruitment.
The CO issued a denial of the certification request in March of 2009, on the grounds the employer failed to identify itself on a job search website. The employer requested a review but was denied again in November for the same reason.
According to the CO, the employer was in violation because “the information initially presented to interested individuals via the Search results would only show the employer’s name as listed with (the job search site), the position title, location and the date posted.” In this case the results on the search page listed the employer as “confidential.”
The employer believed that even though its name was not listed on the search pages, when a potential applicant clicked on the hyper link for the full job description he or she would be able to view the employer’s name and street address. The employer did not feel as if the advertisement was “blind,” as prospective employees would see the required information upon clicking the entire job listing. The CO did not agree and the case was forwarded to BALCA in November of 2009.
The judge assigned to the case pointed out that PERM regulations state an employer placing an advertisement on a web site other than its own must “name the employer.” He mentioned instances where such oversight made it difficult or impossible to determine if more applicants might have shown interest in the opening had they known the employer’s name.
The judge stated that on the search index page the job was listed with a position, the city and state, as well as the date. And just as the employer stated in its request for review, when a potential employee clicked on the search page link they were taken to a complete listing.
Ultimately the judge sided with the employer, pointing out that “the regulations make no such requirements for a search listing used to access the advertisements.” The judge made a point to note that a printed advertisement cannot be judged using the same criteria as a web page. There is no ability to acquire more information with a print ad, so “it must stand on its own content.”
The judge made the distinction that the web page listing search results “was not the advertisement” and “a potential applicant could get from that page to the advertisement with a simple mouse click, rather than the tedious process of contacting an anonymous entity that would be necessary with a deficient print advertisement.”
The judge returned the case to the CO, asking them to consider the text of the advertisement and whether it complied with the regulation.