Matter of The University of Texas at Brownsville, 210-PER-00887 (BALCA, July 20, 2011)
In a July 20, 2011 decision, the Board of Alien Labor Certification Appeals (BALCA) found that in the case of advertisements required by the "special handling" labor certification regulations for college and university teachers, a Department of Labor (DOL) policy requiring that ads be placed only in print publications "imposes a substantive requirement on employers that is not supported by the PERM regulations." BALCA remanded the case to the CO "for further processing consistent with this decision."
In the case, the University employer had placed an electronic advertisement in the national professional journal, "Inside Higher Ed." Although the regulation at 20 CFR 656.18(b)(3) does not specify that only an advertisement in a print publication would suffice, the DOL Certifying Officer (CO) denied the University's PERM application, citing a DOL policy that only print advertisements satisfy the requirements of that section [see FAQ 6, PERM Program, College and University Teachers - Recruitment, on the DOL Web site].
In explaining its decision, BALCA pointed out:
- “the regulations...are silent on the matter of whether the professional journal advertisements must be in print or may be in electronic form"
- DOL FAQs "cannot create a substantive rule... without first undergoing notice and comment rulemaking;"
- The "CO provides no rationale or explanation as to why an electronic national professional journal is somehow inadequate," and
- The CO had "abused his discretion by denying the Employer’s application on the basis that the national professional journal in which it placed its advertisement was only available electronically."
In response to this BALCA decision, on September 28, 2011, DOL updated its PERM FAQs [PERM FAQs, College and University Teachers - Recruitment, FAQ 6] to allow use of an electronic or Web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18, but only under the following specific conditions:
- The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's website
- Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.