The PERM process has strict recruiting requirements which must be followed closely in order for a petition to be approved. If ads used in PERM recruiting are not specific enough about a position’s duties and requirements then DOL may see that they discourage US workers from applying, do not accurately apprise US workers of the position’s requirements, or are not actually for the same position for which a PERM is being filed. Normal recruiting conducted by an employer outside of a PERM process may not be usable in order to meet DOL standards for what is a “good faith” recruitment process for Labor Certification situations.

If ads are run for a PERM position which have overly restrictive requirements not listed on ETA Form 9089 a PERM will be denied. But there are also cases where ads have less restrictive/more favorable requirements (such as leaving out certain education or experience requirements) which will also cause a PERM application to be denied. The Department of Labor (DOL) wants US workers to be accurately apprised of a position. If job ads are too restrictive (large amounts of experience, high levels of education, travel requirements, etc in excess of ETA Form 9089) US workers may be intimidated and not apply. If job ads have LESS than the minimum requirements US worker may not apply if they feel overqualified. And, if certain benefits are left out the alien is being offered better employment conditions than US workers.

“Good Faith” Recruiting

Per regulations, an employer filing a PERM petition for an alien beneficiary must make a “good faith” job recruitment effort for qualified US workers. Ads placed in connection with PERM petitions must adequately and accurately apprise US workers of the available position(s) AND not contain job duties or requirements that are less favorable than those offered to the alien beneficiary.

The common understanding of these regulations by DOL Certifying Officers (COs) and the Board of Alien Labor Certification Appeals (BALCA) has been that ads must not include excess language that would discourage US workers from applying for a position. However, there are also cases of PERM denials where a job advertisement is objectively MORE favorable than the duties/requirements listed on a PERM ETA Form 9089.

So, BALCA/COs use, in general, two regulations in regards to advertisements matching the actual minimum job requirements. One requires that the ads accurately describe a position in order to let US workers know enough about a position to make a decision on applying or not. The other, in an attempt to ensure that as many US workers apply as possible, requires that job ads not be more restrictive or less favorable in their description of a position than the employer’s actual minimum requirements. As will be discussed below, a job ad must meet BOTH of these requirements and PERM petitions cannot rely on only one or the other.

Job Ads Less Favorable than the Employer’s Actual Minimum Requirements

There are extreme examples of job ads being less favorable than what is being offered to an alien beneficiary. For example, if an employer intends to hire an alien and file a PERM petition based on a certain level of experience/education (say, 1 year of experience) but advertises for a position requiring more than that level (for instance, 3 years experience) then BALCA/COs will determine that the ads had a “chilling effect” on the US applicant pool. DOL reasoning is that there would have been more qualified US applicants if they had known that they could qualify for the offered position with only 1 year of experience and the advertised 3. DOL PERM regulations are set up to ensure that a job offer is ACTUALLY open to US workers. Advertising for a position with excess and restrictive requirements will lead to a PERM denial. This level of discrepancy between advertised descriptions and an employer’s actual minimum requirements is rare in PERM cases, but highlights the reasoning behind DOL’s rules.

There are also more common examples of job ads being less favorable that are not as nefarious. In everyday recruiting not related to a PERM petition an employer may routinely advertise with such language as “Bachelor’s required, Master’s preferred,” or “5 years experience a plus.” This practice is fine for most employers recruiting for a general position not related to a PERM application. Most employers have minimum requirements but would happily accept an applicant with more than the minimum. Who wouldn’t? If an employer recruits for a non-PERM position, they probably do have preferences beyond that minimum that they can list in ads (“smart person required, genius preferred”). But, this type of advertising does NOT meet the standards for PERM advertising. Even something as small as listing “drug testing required” or “criminal background check mandatory” in job ads without listing similar language on an ETA Form 9089 may lead to a denial.

Take the above situation of “Bachelor’s required, Master’s preferred,” for example. If this type of language is used in PERM advertising it will probably lead to problems. If an employer lists an educational minimum but “prefers” a level higher than that, this preference will be viewed by the DOL as a requirement. So, if an employer advertises a PERM position as requiring a Bachelor’s but with a preference for a Master’s, and a PERM petition is filed for the alien based only on the possession of a Bachelor’s degree, the case will be denied. The same is true for similar language such as “5 years experience a plus” or any other preference based descriptions. If years of experience are a “plus” for an employer, then it will be treated as a job requirement by the DOL.

Job Ads with Less Than Employer’s Actual Minimum

There are cases in which an employer lists less than their minimum job requirements on advertisements for PERM position. For example, if the employer requires an applicant to have a Bachelor’s degree and 5 years of experience, but advertises for a position only listing a Bachelor’s degree required (and no additional experience) there is ground for PERM denial. Even though this type of ad does not contain terms less favorable than those offered to the alien beneficiary, it still does not accurately apprise US workers of the job opportunity.

Example:

An employer starts recruitment in support of a PERM petition. The employer’s actual minimum requirements for applicants are that they possess a Bachelor’s degree and 1 year of experience in the related job field. However, in advertisements for the position only a Bachelor’s degree requirement is listed. Even though more US workers will apply for the position based on how it was advertised, this case is deniable because there is a discrepancy between the ad that US workers see and what is offered to the alien beneficiary. Some US workers who meet the unadvertised minimum requirements may feel over qualified and not apply for the position since it only requires a Bachelor’s degree and no experience. Thus, BALCA/COs may not see such a situation as “good faith” recruitment if some US workers were discouraged from applying.

This situation is much less common than an employer listing excessive requirements in job ads. Most employers will not want to list less than their actual minimum requirements when placing ads for PERM positions. There is little reason to advertise with deflated requirements. An employer would have to read through so many more applications the fewer job requirements it lists in ads. On top of the extra paper work involved, the likelihood of a PERM petition being successful with very low minimum qualifications is not very good.

If an alien beneficiary of a PERM is the perfect candidate for a position but an employer lists ridiculously low job requirements (just for example, if an alien has 40 years of experience and multiple advanced degrees but the employer only requires “some high school education” and no experience) then, in all likelihood, the employer will never be able to prove that minimally qualified US workers were not available for the position and the alien beneficiary will not see his/her related PERM approved. Yet, some employers do list less than their minimum requirements in their job ads. Focusing too much on NOT listing less favorable terms of employment (and in turn listing more applicant friendly requirements) can in fact hurt a PERM petition in two ways: 1) More US workers will be deemed qualified the lower minimum requirements are set; and 2) BALCA MAY DENY THE CASE FOR NOT ACCURATELY DESCRIBING THE POSITION ANYWAYS!

Another reason for the DOL wanting job ads to match ETA Form 9089 (especially regarding advertisements with sub-minimal requirements) is to determine if the advertised position is actually the one for which Labor Certification is being sought. This is related to the “good faith” standard for recruitment. An employer could list such broad and generic requirements for a general position such that no applicant would apply to meet the actual job requirements reserved for the alien beneficiary. Applicants could see low minimum requirements, apply, and only later discover that they are not qualified because what is actually expected by an employer is a completely separate set of qualifications.

Benefits Not Being Listed in Ads

Not all job-related benefits need to be listed in ads, but some do. There is consistency in BALCA case law that some benefits of employment such as vacation or optional employee housing are not necessary to be listed in job ads. BALCA has reasoned that US workers who look at a job ad will not assume that everything about the job is listed. As a comparison, wage is not required to be listed in PERM job ads, but just because USs worker does not see a wage does not mean that they will assume there is not a wage for a position. The same is true for some job benefits in PERM ads: just because benefits are not listed does not mean that US workers will assume there are none. Usually these are small and customary benefits such as vacation, sick days, health benefits that are common across most jobs.

There are some big benefits that must be listed, however. The biggest benefit that must be listed if it is a part of the job is the telecommuting/work from home option. If an alien beneficiary is able to work from home, but US workers are not apprised of the same possibility, the omission of this benefit from job ads will be considered “terms less favorable” for employment. So, when the regulations maintain that job ads must not CONTAIN terms less favorable than those offered to the alien, this also can mean that they cannot OMIT favorable terms offered to the alien.

Conclusion

If you list requirements beyond the minimum in job ads: an audited PERM will be denied. If you list requirements lower than the minimum in job ads: an audited PERM will be denied. You have to find the right balance and not list too much or too little in PERM advertisements. Consistency across forms is the key once an employer’s actual minimum requirements are established. An employer wishing to file a PERM for an alien beneficiary will want to have high requirements for a position (as long as they are justifiable and the alien meets them) without being restrictive. But, in not being restrictive an employer must also remember to not fall below the actual minimum requirements when advertising for a position.
Above all the DOL expects an employer to show good faith that US workers were made aware of and considered for a position. But good faith does not mean being SO open to hiring any US worker that a position’s minimum requirements are tossed aside. Once again, reasonable and acceptable minimum requirements must be set that are not tailored to the alien’s experience but are also not so broad that an alien will lose hope of ever seeing a PERM application approved.

An experienced immigration attorney will know, based on previous advertising drafting, when an employer’s requirements are too high or too low in PERM job ads. Experienced immigration attorneys will also know the importance of listing these requirements consistently across all forms and advertisements related to a PERM case. They will know when job ads are too restrictive and when they are not specific enough to make a PERM case worth filing. Finding the right combination of seeking quality applicants while not being unjustly demanding of US workers is a nuance which competent attorneys will possess and be able to impart quickly to petitioning employers.

(Updated 10/2/2012 by AD)

References

Matter of S.T.K. Industries, Inc., 2011-PER-01306 (Jun. 12, 2012)
Matter of Pixar, 2011-PER-00637 (Mar. 29, 2012)
20 C.F.R. § 656.17(i)(1)-(2) and (f)(6)-(7)

For more information on PERM Labor Certification, please visit our library on PERM Labor Certification and our recent PERM articles.