BALCA clarifies job ad requirements

11 Aug 15

UNITED STATES

An employer petitioning for permanent labor certification is not required to publish job ads in the largest newspaper in the intended area of employment, the Board of Alien Labor Certification Appeals has ruled in overturning a certifying officer’s denial of labor certification.

“Nothing in the regulations requires an employer to use the newspaper with the highest circulation in the area of intended employment, nor does anything in the regulations require an employer to use a newspaper published closest to the area of intended employment,” the Board said in an Aug. 5 written ruling.

The employer sought PERM labor certification for a director of operations to work in Pharr, Texas. To fulfill its job ad requirement, the company took out ads in the San Antonio Express-News. The certifying officer denied labor certification, finding that because San Antonio is four hours away from Pharr, and not within normal commuting distance, the employer failed to advertise “in a newspaper of general circulation in the area of intended employment,” as required by regulations.

On appeal, BALCA reversed the certifying officer’s decision. The board found that because the Express-News is a newspaper of general circulation in Pharr, the employer satisfied its mandatory print advertising requirements. The fact that the Express-News is not published in Pharr or that another newspaper may have a wider circulation in Pharr, where the work would be performed, was irrelevant, the Board said.

“When, as here, a single area of intended employment is served by more than one newspaper, regardless of where each newspaper is published, and each of those newspapers is available to and reaches substantially the same audience, the (certifying officer)’s task should not be deciding which paper reaches the most people, but rather whether the newspaper in which the required advertisements were placed reaches the intended audience and thus is ‘a newspaper of general circulation in the area of intended employment,’” the Board held.

BAL Analysis: The BALCA ruling reaffirms that an employer satisfies the mandatory print ad requirements for labor certification by taking out ads in a newspaper that circulates in the intended job location even if it is not published from that location or if other newspapers have higher circulation in that location. Employers do still need to ensure that they are placing ads in the “most appropriate” newspaper, as this ruling was limited to the issue of whether the newspaper was a “newspaper of general circulation in the area of intended employment.”

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