August 24, 2010

If the newspaper advertisement being used for a PERM Labor Certification contains language that certain requirements are “preferred,” the certifying office (CO) officer will properly assume that “employer preferences are actually job requirements.” Unless these requirements are included in the PERM application, the CO will properly deny the application. An example of this issue is a PERM Labor Certification filed by Eastern Tennessee State University (ETSU).

On August 21, 2007 ETSU filed an Application for Permanent Employment on behalf of a foreign national who was chosen for an assistant professor position. The CO issued an Audit Notification on November 19, 2007 and requested additional recruitment information. The CO specifically wanted copies of the job advertisements and other documentation that described the position. ETSU provided all of the necessary documentation. On August 28, 2009 the CO denied certification because of inconsistencies within the supplied documents. The CO stated that the Notice of Filing, job order, and job advertisements all contained job requirements that exceed those listed on the application.

It was also noted that four minimally qualified American candidates were rejected during the hiring process. As a result, the CO concluded that ETSU did not conduct competitive or thorough job recruitment. ETSU filed a request for review on September 16, 2009. In the request, ETSU stated that the various recruitment documents did not include additional requirements. Instead, they explained that the extra skills listed were merely preferences. ETSU mentioned that the four American candidates were rejected because they were not fluent enough in Spanish. The CO forwarded the request for review to BALCA. Once ETSU responded with the intent of proceeding with the appeal, the CO sent a letter to BALCA that outlined the reasons that certification was denied.

BALCA confirmed that no recruitment steps can use requirements that exceed those listed on the application. ETSU’s assessment that the supposed extra requirements were actually preferences was found to be a reason for application denial. In past cases, the CO and BALCA have determined that preferences are in fact job requirements. Stating preferences violates regulations because they are misleading and cause candidates to consider them as requirements. BALCA also asserted that ETSU chose to use the basic labor certification process which does not allow hiring to be based on the comparison of candidates. ETSU compared the foreign national to the four American candidates while assessing individual qualifications. The basic process requires the CO to deny certification if an employer has failed to hire any minimally qualified American candidates in favor of the foreign national. For these reasons, BALCA supported and confirmed to CO’s decision to deny Labor Certification.

The intent of the certification application is to monitor the American workforce and make sure that strict regulations are upheld. Upon submission, the PERM Certification is reviewed by the CO at the U.S. Department of Labor.

Appling for PERM Labor Certification is a lengthy and detailed process. Substantial documentation is required in order to meet various regulations. All necessary documentation must be accounted for in a timely manner. However, the accuracy and consistency of the documents is also critical in regards to whether or not certification is approved. In the case of ETSU’s application process, the importance of documentation accuracy is evident. Contradictory information and using ‘preferences’ within documents will often lead to the denial for Labor Certification which is what happened to ETSU in this case.