August 26, 2010
If the employer has a drug and criminal background screening policy that they place in the PERM Labor Certification advertisement, they must also include this requirement in the PERM Labor Certification application form ETA 9089, BALCA ruled. If this is not done, the Certifying Officer (CO) will conclude that the foreign national is being offered more favorable working conditions than otherwise offered to American workers and the application will be denied. It is critical that accurate information is included in the PERM application that matches the advertisement. Strict regulations are in place in order to protect the integrity of the work force as well as the advertising and hiring process. An example of this issue is a PERM Labor Certification that was filed by Noll Pallet & Lumber Company (NPLC).
On December 15, 2006 NPLC filed an Application for Permanent Employment Certification on behalf of a foreign national who was selected for a production worker position. On March 1, 2007 the CO at the U.S. Department of Labor issued an Audit Notification. The CO requested that NPLC submit more detailed recruitment documentation. NPLC provided the additional documents on March 20, 2007. On June 25, 2007 the CO denied certification because the newspaper advertisements for the position offered terms and conditions that were less favorable than those offered to the foreign national.
The CO further explained that the advertisement called for criminal and background checks as well as a drug test. These specifications were not listed on the application. On July 23, 2007 NPLC requested a reconsideration stating that they had amended the issues cited by the CO. A letter of reconsideration was issued by the CO on November 5, 2008. The CO stated that the initial issue had not been corrected. As a result, the certification was denied.
NPLC filed an appellate brief on December 30, 2008. They stated that the requirements for the criminal and background checks, as well as the drug test, were standard for that industry. NPLC explained that they did not have an opportunity to change the application form in order to align it with the job advertisements. NPLC also stated that they would have clarified the information on the application if the CO had told them that it was necessary. They also stated that the CO never required them to submit a business necessity letter which would have justified the criminal and background checks. The CO filed a statement on December 22, 2008 that clarified and supported the denial of the application.
The amendments that NPLC made to the application form were not sufficient and did not meet regulation standards. NPLC changed section H-12 on the application form when they marked “no” in regards to whether the job requirements were normal. The CO emphasized that when “no” is selected, the employer must be ready to supply documentation that shows that the requirements are a necessity for that business. However, CO further clarified that checking “no” did not adequately explain that criminal and background checks were required. Instead, the application should have been adjusted in section H-14 which allows the employer to list “specific skills or other requirements.” As a result of the inconsistencies within the documentation, the CO stated that the application was denied due to documentation errors.
BALCA confirmed that federal regulations require employers to conduct recruitment before the application is filed. Advertising is an important part of the recruitment process. It is required that at least two advertisements are circulated for an open position. BALCA emphasized that the advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” According to these regulation standards, NPLC did not meet the necessary requirements in order to obtain certification for the foreign national. The changes that were requested by the CO were not corrected by NPLC. As a result, BALCA confirmed the CO’s denial of the application.
Accurate documentation and properly drafted PERM application are critical components in order for PERM Labor Certification to be approved. However, the CO does allow for employers to provide missing information or amend the application following the audit.