Department Of Labour Loosens Tight Grip On PERM Ads
A controversy has been brewing at the Department of Labour over
the exact wording for online Programme Electronic Review Management
(PERM) ads.
Newspaper ads
The PERM rule, which was implemented in 2005, contains detailed
instructions for what must be included in a newspaper ad,
namely:
- the employer’s name;
- the geographical place of employment(this does not have to include the street address);
- a job description; and
- instructions for contacting theemployer (eg, a PO box number, fax number or other
identifier).
The PERM rule further states that newspaper ads cannot
contain:
- a wage rate that is lower than theprevailing wage rate;
- job requirements or duties thatexceed those listed on ETA Form 9089; and
- wages or employment terms andconditions that are less favourable than those offered to US
workers.
Professional ads
In addition to newspaper ads, occupations that are deemed to be
professional require three additional recruitment steps that may be
chosen by the employer from a list of 10 options. When the
Department of Labour planned the recruitment instructions for the
PERM process, it deliberately left out any rule pertaining to the
text of professional occupation ads, enabling employers to
elaborate them as they see fit. The recruitment process for
professional occupations is diverse and includes advertising via
websites, the radio and television, college campuses and placement
offices, employee referral programmes, ethnic and local newspapers,
private employment agencies, job fairs and trade and professional
journals.
Free to determine what to include in professional ads, most
employers have played it safe by following the rules for newspaper
ads.
Ads should always include the employer’s name, the place of
employment, the job description and instructions for contacting the
employer to send a curriculum vitae. However, employers do
not always realise that while some information may be omitted, it
may not violate the law if included. These would be ads offering a
wage rate that is lower than the prevailing rate, excessive
requirements or duties or employment terms and conditions offered
to the foreign worker that are less favourable than those offered
to US workers. When employers publish optional information in the
ads, needless errors may occur and result in denial.
Online ads
In recent years the Board of Alien Labour Certification Appeals
has recognised that in practice, the content of professional ads
may not always reflect what is required for newspaper ads. In a
number of cases dating back to 2011, the board has granted
approvals to employers that did not include their address on the
same web page as their online ad. The address appeared elsewhere on
the website, but was easy to find.
In April 2016 the Board of Alien Labour Certification Appeals
considered Matter of VLS IT Consulting, Inc (2012-PER-
1769). In this case, the employer’s website had included all of
the information required to notify workers of the job opportunity.
However, because the web page that contained the ad did not bear
the employer’s name, the certifying officer issued a denial.
The employer responded that the website showed the employer’s
name on a different page, and that job applicants could easily
navigate the site to find all of the required information. The
board then granted approval to the employer.
In addition, the en banc decision in Symantec
Corp (2011-PER-1856, July 30 2014) held that the requirements
for newspaper ads do not apply to professional recruitment
steps.
Comment
Despite the apparent liberalisation of the professional
recruitment rule, employers should always consider using the
requirements for newspaper ads detailed in 20 Code of Federal
Regulations 656.17(f)(4). Otherwise, it might be necessary to
appeal the case to obtain an approval – a process that can
take several years.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.