The Department of Labor (DOL) has made it clear that the Notice of Filing (NOF, also commonly known as Internal Job Posting) requirement for PERM petitions is not a mere technicality. Any omission or error related to a NOF will be fatal to a PERM application. If audited, any attempt to explain deficiencies related to a NOF are almost guaranteed to fail. Common sense arguments and requests for leniency in relation to NOF postings have thus far not been seriously entertained by the DOL.

Since the NOF is such a crucial part of a successful PERM application, it is important to understand the DOL’s Notice of Filing requirements and the consequences for even minor lapses in meeting these requirements.

Notice of Filing Requirements

A complete PERM application process requires a Notice of Filing. The NOF is intended to advise current employees that a labor certification may be filed for an alien applicant for a relevant job opportunity. The NOF must be given between 30 and 180 days before the filing of a labor certification application.

All PERM applications require a NOF which contains special regulatory language regarding the filing of labor certification, reporting non-compliance with DOL regulations, and contact info of the DOL certifying officer.  In addition, the NOF must contain the same information that is required for recruiting advertisements. For regular PERM this means that the name of the employer, the job location, job description, wage, an address to send resumes, and employer contact information all must be listed in a NOF. For Special Handling for university and college teachers only a job title, job duties, and requirements are necessary for the NOF.  Wage is not a mandatory component of a NOF in special handling cases.

The petitioning employer must post the NOF for 10 consecutive business days in the employer’s place of business, as well as in any and all in-house media. The posted NOF must be in a location that is easy to read and will be noticed by employees. Federal regulation lists two appropriate locations for NOF postings: near posted wage and hour notices or near posted safety and health notices. The main idea for a NOF posting location is that all employees must be able to easily access the posted information without obstruction.  For a position that is covered by union contract, a bargaining representative notification process is used in lieu of notice of filing.

There are regularly denials of PERM applications based on a failure of the employer to properly list information on the NOF. Some of the most common errors with an NOF may seem to be minor, but even a slight clerical error can result in denial.

NOF Related Reasons for PERM Denial

The DOL is looking for consistency, both within specific PERM applications and across all PERM applications received for processing. For this reason DOL is not willing to make individual exceptions to NOF deficiencies. Even if the petitioning employer feels that their specific NOF could be argued to meet requirements based on common sense understandings, the DOL will almost certainly not approve a PERM petition with proven NOF errors.

Some of the main NOF errors resulting in denial of PERM cases are:

1. NOF wage was either not listed, or was lower than prevailing wage for position: As discussed above, for regular PERM purposes the NOF must contain the wage offered for the position. This wage must be equal to or greater than the prevailing wage determination (PWD), as well as equal to or greater than the wage offered to the alien beneficiary. The DOL is looking for consistency and proof that the recruitment process did not offer the alien beneficiary more favorable terms of employment than any potential U.S. applicants. If the wage offered is not listed, is less than the PWD, or is less than the wage offered to the alien then a PERM application will be denied by the DOL per regulation. It should be noted that this specific reason for denial does NOT apply to Special Handling for university and college professors.
2. NOF did not state employer’s name: Some employers have made a common sense argument about the need to list an employer’s name on a NOF. They make the point that employees will know, based on where a NOF was posted, who is the petitioning employer as the notice had been posted inside the premises of the petitioner. The DOL does not agree with this common sense argument and has made it known that this requirement is not a mere technicality. PERM applications may be denied for failing to list the name of the employer on a NOF, even for businesses with as few as three employees (where it is reasonable to assume that all employees are in contact personally with the employer). The DOL reasons that not all workplaces are the same, and to assume that employees will know who the potential employer is based on NOF posting location is not an acceptable reason for failing to meet NOF requirements.
3. NOF was not consistent with ETA 9089 form: PERM cases may be denied if the NOF lists job requirements that are not similarly listed on the ETA 9089 form for labor certification. As with the requirement of listing the position’s wage, the requirement of consistency between forms and documents is to ensure fairness in recruiting. If the employer lists excessive job requirements and responsibilities on the NOF, but does not list the same information on the ETA 9089 form, the DOL will suspect that the employer has tried to discourage U.S. applicants from applying for the job.  For instance, if the listed wage in NOF is lower than the wage in the ETA 9089 form (though both are above the prevailing wage), DOL will deny the case based on the analysis that the employer posted a lower wage that discouraged potential US workers.
4. NOF did not contain address of the appropriate Certifying Officer (CO): The DOL wants to ensure that anyone with information relevant to a labor certification application can contact that department’s CO who will review the application. Any NOF which does not contain the CO’s address, or lists an address for a different CO, will be denied per regulation.
5.  NOF did not state the location of the job opportunity: Similar to the requirement of listing an employer’s name, to some employers the listing of the location of the job opportunity seems unnecessary. The common sense argument against needing to list location in a NOF is that employees will assume that the job opportunity is for the place of business in which the NOF is posted. The DOL recognizes this argument, but does not see it as strong enough to approve a PERM application with an incomplete or deficient NOF. The location of the job opportunity must be listed on the NOF to ensure PERM application success.  
6. Recruitment report did not disclose the posting dates for the NOF: Per regulation, the NOF must be posted for 10 consecutive business days. When filing a labor certification application an employer should include in the recruitment report the dates that the NOF was posted. In the event of an audit, failure to list these dates will result in a PERM denial. The DOL requires proof that the NOF was posted for 10 consecutive business days between 30 and 180 days before labor certification filing. Without documenting the dates of NOF posting an employer runs the risk of having their PERM application denied.

The above mentioned reasons for PERM denial are but some of the major ones. There are many more case specific reasons that a NOF may not prove sufficient for a labor certification application to be approved. However, the above list gives some important insight into the DOL’s high standard for NOF acceptability.

Conclusion

The PERM process is very detailed, stringent, and complicated. No requirement put forward in federal regulation is considered immaterial by the DOL, least of all those pertaining to the NOF. DOL’s Board of Alien Labor Certification Appeals, the appellate review body for PERM cases, has not ruled in favor of employers with regard to NOF discrepancies.  The NOF serves a dual purpose of advertising a position while simultaneously giving employees recourse to document any irregularities in a PERM application process to the appropriate CO. It is thus not hard to understand why the DOL pays such special attention to something that may appear to be so minor.

The specificity of DOL requirements relating to NOF posting necessitates an experienced and competent attorney. Many PERM cases have been denied due to simple NOF errors that could have easily been caught by an attorney familiar with filing labor certification petitions.

Any employer or potential beneficiary who is considering labor certification is strongly encouraged to contact a competent attorney to ensure that no issue, no matter how minor it may seem, is overlooked.

(Updated 10/1/2012 by AD)

References

Code of Federal Regulations: 20 CFR § 656.10(d)
BALCA En Banc Decision: Matter of Hawai’I Pacific University (2009-PER-00127)

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