BALCA Upholds PERM Where Alternative Requirements Were Omitted from Ads

August 15th, 2016

In Cosmos Foundation, Inc., BALCA reversed the denial of the Form ETA 9089 PERM labor certification and found that the employer’s omission of the alternative experience requirements in the recruitment sufficiently apprised US workers of the open position and did not discourage potentially qualified candidates from applying. Matter of Cosmos Foundation, Inc., 2012-PER-01637 (August 4, 2016).   The CO stated that the PERM labor certification application was denied because the omission violated two provisions of the PERM regulations:  (1) not sufficiently apprising US workers of the job opportunity and (2) not having the job clearly open to US workers (656.10(c)(8)).


BALCA found that an Employment and Training (ETA) FAQ addresses the level of detail required in the employer’s advertisement. This states that “Employers need to apprise applicants of the job opportunity.  The regulation does not require employers to run advertisement enumerating every job duty, job requirement, and conditions of employment. . . “  https://www.foreignlaborcert.doleta.go/faqanswers.cfm (last visited May 31, 2016).  BALCA concluded that not every job requirement must be included in the ad in order to notify US workers of a job opportunity.”


Also, in this case, the ad stated that 24 months of experience was necessary. BALCA accepted the employer’s argument that the reasonable interpretation of the employer’s listed job experience requirement was that applicants were required to have two years of experience in a specific field versus in the particular job noted in the PERM application.   Therefore, BALCA found that the employer’s omission of the alternative experience requirement did not discourage qualified applicants’ interest in the job.