BALCA Holds that Link to HotJobs Is Not the Same as Posting the Job on the Employer’s Website


An important goal of the Immigration and Nationality Act (INA) is to protect U.S. workers from being displaced on the job market by foreign workers.  Certain employment-based permanent residence applications therefore require the employer to obtain a Labor Certification (PERM) from the Department of Labor.

In order to obtain a Labor Certification, the U.S. employer must prove that there are not sufficient U.S. workers who are able, willing, qualified and available to perform the work. Accordingly, the employer is required to conduct mandatory recruitment steps in a good faith effort to recruit U.S. workers, prior to filing the application for a Labor Certification.  Certain types of positions require three additional recruitment steps from 10 choices listed in the relevant government regulation.  One of these choices is to advertise the job opportunity through a job search website other than the employer’s.  Another is to advertise the job opportunity on the employer’s website. 

On December 30, 2013, the Board of Labor Certification Appeals (BALCA), in Matter of Dallas Morning News, held that the employer failed to demonstrate that it recruited for the position on its website where the website contained a "Careers" link that redirected users to the employer's profile on HotJobs.  Further, BALCA held that, if permitted to use one job posting to satisfy two of the requisite three steps, the employer would be circumventing the regulatory directive.

Applications for Labor Certification are highly complex and require significant immigration expertise.  Therefore, it is imperative to retain experienced immigration counsel before making any filings with the Department of Labor.