Labor Certification Granted Despite Different Job Description in SWA Job Order

Any employer or employee who has dealt with labor application issues understand the importance of an accurate job description. Imagine you posted a State job order that has a different job description than what you entered in the ETA 9089 labor application. Would it cause a denial of the labor application?

According to a recent decision by the Board of Alien Labor Certification Appeals (BALCA), such a discrepancy does not justify a denial. Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016).

In Pinnacle, the employer filed a foreign labor application for the position of a "Technical Recruiter." The job description in the PERM labor application is as follows:

Recruit qualified IT professionals across platforms and skills backgrounds for multiple positions; Screen candidates for application development. Interview candidates and perform orientation/training of all new candidates. Maintain client contacts database.

In the State job order, the job description is listed as:

Job Description Analyze, coordinate payroll and process benefits, new hire process, employment verification, unemployment claims, time entry/time sheet management. Manage Visa/Green Card Application process, legal issues compliance (ADA, EEO, FMLA, OSHA, etc.). Work directly with Director of Operations.

The Certifying Officer (CO) denied the petition because the State job order "contained duties that exceeded the job duties listed on the ETA Form 9089," citing the regulation at 20 C.F.R. § 656.17(f) as authority for the denial.

BALCA reversed the denial because § 656.17(f)(6) applies only to advertisements placed in newspapers or in professional journals but not to SWA job orders. In its decision, the Board cited Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) and also Fidelus Technologies, 2011-PER-1635 (June 11, 2015) (applying Symantec to SWA job orders). Newspaper ads and SWA job orders are two different recruiting requirements for PERM foreign labor application, and the Pinnacle Board decision decidedly drew a distinction between them.