Highlights
ISSUE
·
On
July 11, 2011, the CO issued a second denial letter, stating that the job order
contained job requirements which exceeded the job requirements listed on the
Employer’s ETA Form 9089 in violation of 20 C.F.R. § 656.17(f)(6) of the
regulations.. Specifically, the job order posted at the New York State work
force agency3 contains an experience requirement of
“Mid-Career (2-15 years)” whereas the ETA Form 9089 only required 24 months
experience. (AF 10).
ARGUMENT
On August 4,
2011, the Employer requested reconsideration. The Employer argued that the
regulatory authority relied on by the CO for the denial of labor certification
applies only to advertisements and not job orders placed with the SWA. The
Employer argued that the regulation section pertaining to job orders does not
contain the same content requirements as those for advertisements. The Employer
additionally argued that the SWA job order form has the following experience
options: Intern, Entry Level (0-2 years), Mid-Career (2-15 years), or Senior (15+
years). The Employer explained: “given that the offered position requires not
less than two years of experience, it was automatically listed under Mid-Career
(2-15 years)” and the Employer had no control over the automatic listing.
BALCA
·
The CO
denied the Employer’s application because its SWA job order contained job
requirements which exceeded the job requirements listed in its ETA Form 9089 in
violation of Section 656.17(f)(6). Section H.6 of the Employer’s ETA Form 9089
indicated that it requires 24 months of experience in the position offered. In
comparison, the Employer’s SWA job order submitted with its audit materials
stated that the position requires “Mid-Career (2-15 years)” experience. The
CO‟s denial is appropriate if subsection 6 of Section 656.17(f) applies to job
orders, as the requirements in the job order exceeded the requirements in the
ETA Form 9089. See CCG Metamedia, Inc.,
2010-PER-00236 (Mar. 2, 2011) (“Stating a range of experience in the recruiting materials
that goes above the minimum experience requirements stated in the application
inflates the job requirements in the job advertisements, and does not accurately
reflect the Employers attestations on the ETA Form 9089. Moreover, it is in
violation of the regulations.”).
·
However, as
argued by the Employer, Section 656.17(f), “Advertising Requirements” does not
refer to job orders. While job orders are clearly part of the overall
recruitment process and are a form of advertisement, the Employment and Training
Administration (“ETA”) expressly limited Section 656.17(f) to “advertisements
placed in newspapers of general
circulation or in professional journals.” Job orders do not fall within
these two enumerated categories of advertisements. Furthermore, when looking at
the overall structure of the PERM regulations, it appears the ETA purposely
omitted language stating that the requirements of Section 656.17(f) apply to
job orders. For example, under Section 656.10(d) requiring employers to post a
Notice of Filing, the ETA added subsection 4 which explicitly states “the
notice must contain the information required for advertisements by §
656.17(f).” 20 C.F.R. § 656.10(d)(4). Thus, although notice of filings would
not normally be categorized as “newspaper” or “professional journal”
advertisements, the ETA expressly stated it intended Section 656.17(f) to apply
to notice of filings as well. The ETA did not include such language in the
section addressing job orders.
·
BALCA, in a
recent en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8,
2012), held that based on a reading of the plain language of the PERM
regulations, an employer is not required to submit a copy of its job order as
proof of the recruitment step, because the regulations state “the start and end
dates of the job order entered on the application serve as documentation of
this step.” In its analysis, the Board contrasted the regulatory language used
for job orders in Section 656.17(e)(2)(i) with the language used for newspaper
advertisements in Section 656.17(e)(2)(ii). The Board stated “unlike SWA job
order regulations, the regulations governing placement of a newspaper
advertisement provide that „documentation of this step can be satisfied by
furnishing copies of the newspaper pages in which the advertisements appeared
or proof of publication furnished by the newspaper.‟” Id. at 6. The Board went
on to state “this distinction is one of relevance. While the PERM regulations
clearly require an employer to be able to provide proof of publication of its
newspaper advertisement, the regulations do not require an employer to be able
to provide proof of publication of SWA job order.” Id. at 6.
·
In support
of its regulatory interpretation, the Board in A Cut Above Ceramic Tile quoted
the Supreme Court, stating where Congress “includes particular language in one
section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the
disparate inclusion o[r] exclusion.” Id. at 7 (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)). The same analysis from A Cut above Ceramic
Tile regarding documentation of job orders is equally applicable here. The ETA
included language in Sections 656.17(e)(2)(ii)(D), 656.17(e)(1)(i)(B)(3), and
656.10(d)(4) applying the content requirements of Section 656.17(f) to
newspaper advertisements and notice of filings, but omitted such language in
Section 656.17(e)(2)(i) addressing job orders. It can only be reasoned that the
omission with regard to job orders was intentional as the ETA obviously knew
how to incorporate the advertising requirements of Section 656.17(f) when it so
desired as demonstrated by the three occasions where the requirements were
specifically made applicable.5 There is nothing in the regulatory history which
suggests that the ETA intended Section 656.17(f) to apply to job orders despite
the omission of such a requirement in the regulations. Lastly, we acknowledge
that the outcome of this decision causes some concern as job orders play an
important role in the recruitment of U.S. workers, and the process would
certainly be enhanced if the advertising requirements of Section 656.17(f)
applied to job orders. However, given that the regulations contain many
specific requirements of employers filing Applications for Permanent Employment
Certification, and almost strict liability for failure to comply with the
delineated regulatory obligations, we are unwilling to add an additional,
unwritten mandate for applicants. That power rests solely with the ETA to amend
the regulations to ensure a result that more effectively aligns with the
purpose of the regulations.
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