BALCA Grants Labor Certification Despite $1.00/Year Listed In Job Order

In a recent decision, BALCA overturns the CO's denial of a PERM labor application after finding, once again, that the State Job Order (JO) is not subject to the general advertising requirements under 20 C.F.R. §656.17(f). Matter of Bahwan Cybertek Inc., 2012-PER-01147 (2/18/16)

20 C.F.R. § 656.17(f) provides that advertisements placed in newspapers of general circulation or in professional journals must not contain wages or terms and conditions of employment that are less favorable than those offered to the foreign worker.

In Bahwan Cybertek Inc., the employer's policy is not to advertise the salaries in job postings. However, due to technical requirements of the State JO's website, the employer entered $1.00/Year as the salary for its job opening for a Project Manger. However, the employer also added "Competitive Salary. Will be discussed with the candidate" underneath. Nevertheless, CO denied certification based on 20 C.F.R. § 656.17(f).

BALCA reversed, noting that the regulation, by its text, does not apply to job orders. In fact, in an earlier case decided on January 1, 2016, BALCA already held that 20 CFR §656.17(f) is not applicable to SWA Job Orders. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016).

BALCA also opined that U.S. workers were not discouraged from applying for the position, as argued by the CO. To the extent that this is clearly a senior level professional position, reasonable job seekers would not believe that the salary is only $1.00 per year.

It should be noted that in another en banc decision by BALCA, Symantec Corporation, 2011-PER-01856 (Jul. 30, 2014), the Board already held that the additional steps of recruitment for professional jobs need not have to comply with the content requirements under 20 C.F.R. § 656.17(f).

This series of Board cases make it clear that, for PERM recruiting purposes, only the mandatory print advertisements and the Notice of Filing must comply with the content or "specific job opportunity" requirements pursuant to 20 C.F.R. § 656.17(f). In Job Orders and other additional recruiting steps, employers only need to present evidence that the "occupation" involved has been announced. This legal distinction is critical.