Prior to filing a permanent labor certification (PERM) application for a foreign worker, U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations have specific requirements for recruiting, some of which relate to advertisements. Specifically, an employer must place an advertisement in a newspaper of “general circulation” on two different Sundays. Additionally, to fill a separate recruitment requirement, the employer may opt to advertise in a local or ethnic newspaper.
Last month, the Board of Alien Labor Certification Appeals (“BALCA” or “Board”) decided Matter of Delta Search Labs, Inc., on the issue of whether separate advertisements in the same newspaper could count as separate recruitment steps. In Delta, the employer had placed ads in the Sunday edition of the Boston Globe and the same or similar ad in the weekly edition. The Certifying Officer denied the Labor Certification on the basis that the employer had replicated recruitment steps and thus not fulfilled the requirements for recruitment. BALCA reversed the decision, finding that the regulations did not specifically prohibit an employer from using the same newspaper as both a newspaper of general circulation and a local/ethnic newspaper, provided the newspaper satisfies both categories. The employer had submitted evidence demonstrating the weekday editions reached a different population than the Sunday edition, providing support for the Board’s decision.