Office of Foreign Labor Certification responds to BALCA decision by revising PERM FAQ

News Release from Jewell & Associates, PC – September 20, 2011 In a recent post we discussed the BALCA decision In the Matter of The University of Texas at Brownsville, 2010-PER-00887. The Board held that the Certifying Officer was wrong to deny the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. The Certifying Officer, in support of his argument, had referred to an answer to an FAQ by the Office of Foreign Labor Certification (OFLC), which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.” The Board disagreed and reaffirmed its position that agencies may not impose substantive rules that have the force of law through answers to “frequently asked questions.”

We thought it sensible that employers and practitioners treat Brownsville with caution until the Department of Labor, through the OFLC, revealed its intent towards the offending FAQ answer. The FAQ and answer have now been revised and can be found at the FAQ web page (and AILA InfoNet, doc. 11090164). The answer is now “yes”: “an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers.” It then lists three conditions:

  • The journal’s job listings must be viewable to the public without payment of subscription and/or membership charges. UPDATE: This condition was removed from the FAQ on September 28, 2011.
  • The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal’s website.
  • Documentation of the placement of an advertisement in such a journal must include its text and evidence of its start and end dates.

By Christopher Beckerson. © Jewell & Associates, PC 2011