Advertising Requirements in PERM Cases for Employment Based Green Card Applications

March 11, 2011 by Immigration Law Attorney Lena Korial-Yonan, Esq.

Because the U.S. Department of Labor's processing time for a recently filed new PERM application is currently one month, i.e. February 2011, BALCA has been busily working away at issuing decisions. These decisions are good for the general public, because at least they provide information as to what we need to do to ensure higher rates of success for filing PERM cases.

New BALCA Case Released on March 2, 2011 that Explains What Must be in the Ads Placed

As indicated above, whether the position being recruited for is for an unskilled labor or skilled and professional labor, generally advertisements must be placed in newspapers and other places. The new BALCA case released on March 2, 2011 provides information on how the ads must match exactly the requirements stated in the PERM ETA 9089 application.

In the case of CCG Metamedia, Inc., the employer advertised in a newspaper of general circulation and on his website that he is requesting 2-4 years experience for the position of Technical Design Director. See 2010-PER-00236. One of the problems with requiring 2-4 years experience is that the employer on the Form ETA 9089 states that he requires 2 years experience.

As a result, DOL denied the case and BALCA reaffirmed the denial upon the employer's request for reconsideration. The employer argues that the ETA form itself does not provide any place where he can mark 2-4 years experience. As a result, he requests 2 years experience on the ETA form. The DOL and BALCA have both held that regardless of what can be placed on the form, the employer must state the same requirements on his advertisements as he does on the ETA form itself. He cannot require excess experience in the advertisements than what he requests on the ETA form itself.

As a side note, immigration lawyers differ as to whether they place the minimum requirements in the advertisements. You need to seek assistance from an experienced immigration lawyer to obtain information on whether the advertisements must state the minimum requirements for the position. However, the main point that we can understand from the above case is that if the minimum requirements are stated on the advertisements, then these requirements must match what is requested on the ETA form itself.

It is easy to understand BALCA's requirement here, because of course their concern is that they do not want employers listing requirements in excess of what should be required just to discourage qualified applicants from applying. The CCG Metamedia, Inc. case seems to make sense when you look at it from that perspective. I also see the immigration lawyer's perspective, because the ETA form does not allow for many details to be placed.

However, if you as an employer or as an immigration attorney is completing and filing an ETA 9089, the general rule that the ETA 9089 should match the advertisements' content makes good legal sense so that in case an audit is not issued, the DOL will still be fully informed of what was required by the employer when he recruited for the position.

For more information on filing your company's PERM case, please contact Lena Korial-Yonan, Esq. at the contact information provided at www.needimmigrationhelp.com. This article titled, "Advertising Requirements in PERM Cases for Employment Based Green Card Applications" is not legal advice and does not substitute obtaining sound legal advice from an immigration attorney about the specific details in your own case.

THIS ARTICLE OR ANY PORTION OF THIS ARTICLE MAY NOT BE RE-PRINTED WITHOUT EXPRESS PERMISSION OF THE AUTHOR. NO EXCEPTIONS.