The following three matters establish one clear principle when filing PERMs and advertising: Maintain Consistency!
Too many employers are inconsistent when filing ETA 9089. Central question seems to be whether qualified applicants would apply for the position had they been specifically apprised of the job opportunity (otherwise stated, would individuals still apply if they read the wording of the advertisement as the employer stated in the ETA 9089 versus the actual wording the employer used.) This concept is very important for the practioner to grasp as it focuses on the intent behind advertisement and recruitment efforts related to PERM filings. The purpose of these requirements is to prevent the displacement of qualified U.S. applicants. Therefore, Employers must take precaution to advertise properly and to maintain consistency when completeing the ETA 9089. Consistency when it comes to wording, geographic locations of work sites, degree requirements, and work requirements.
In the Matter of Deloitte FAS, BALCA held that denial was proper where the ETA 9089 included language regarding the possibility of travel, however that language was not included in the advertisement. BALCA substantiated this holding by stating that qualified U.S. applicants who are interested in travelling may not have applied because of the employers failure to state the travel possibilities. Employer has violated 20 C.F.R. § 656.17(f)(3) by not specifically apprising U.S. workers of the job opportunity.
In the Matter of Sun Microsystems (3/29/12), BALCA held that denial was proper where the Employer failed to specify “unanticipated worksites” as indicated in the ETA 9089. BALCA substantiated this holding by stating that U.S. workers were not properly notified of the opportunity even if travel was optional and not required. Employer has violated 20 C.F.R. § 656.17(f)(4) by including different geographical locations in the ETA Form 9089 than what was stated in their advertisements.
In the Matter of Pixar (3/29/12), BALCA found that denial was proper where the ETA 9089 listed a BA degree requirement, however the employer’s website listed high school education. BALCA substantiated this holding by stating that qualified applicants may have considered themselves overqualified and therefore did not apply. “U.S. workers viewed different requirements than those listed on the ETA Form 9089. Thus, the advertisement was not specific enough to apprise the U.S. worker of the job offered to the foreign worker.”