Placing Employer’s Name in Job Vacancy Ads and Using Optional Advertising Means
Getting a foreign worker to live and work in the U.S. on a permanent basis is not an easy feat, but is one many employers have embarked upon time and again. In order to make a successful PERM labor certification application, the employer is required to make an advertisement of the vacancy in newspapers, state local work agency and employer’s workplace.
Generally the different ways an employer can advertise a vacancy is by taking out ads in the newspaper which is normally circulated in that region where the company’s workplace is located. Advertisement of the vacancy must also be placed at the state’s local work agency who would reach out to those qualified on their records. The last important place of advertisement is the company’s workplace itself, placed in a general location that it could be seen by anyone entering the premises.
Some PERM application have been denied because the employer hired a private employment agency when trying to recruit from qualified U.S. workers. The employer had also not included their name in the advert. The employment agency had placed the vacancy advertising as a form of professional recruitment.
According to 656.17(f) of the PERM Rule, an employer placing the mandatory two Sunday newspaper ads must include their name and location in the advert before it will be approved. The conflict seems to be that, does this rule apply to adverts made using an agency? Section 656.17(e) of the PERM Rule which covers other forms of advertisement, did not expressly state what to be done in this situation.
In 2014, the Board of Alien Labor Certification, in Matter of Symantec Corp. (2011-PER-1856, July 30, 2014), held that while the employer’s name must be included in the mandatory Sunday ads, it is not compulsory where other forms of recruitment, like a private agency, was used. As this is the position of the law based on the interpretation of the laws, the DOL cannot seek to change this by creating laws to suit their interpretation.
The Symantec precedent made it clear that what was of importance was the vacancy and the specific occupation and not necessarily a vacancy that requests for specific certification. It is of importance that an employer follows this provision of the PERM Rule when advertising that particular vacancy during the recruitment exercise.
Interestingly, employers do not wish to include their names when advertising these vacancies, this must be why they prefer to use an advertising agency considering it would be impossible to include their names when using one. If the company’s name is included, the advertising agency would be unable to take credit for the success of the recruitment process, obscuring their presence from other prospective clients seeking advertisement for a job vacancy.
Depending on the form of recruitment advertising used, each is subject to various considerations. Department of Labour (DOL) and indeed the Administrative Law Judges, has had several opportunities to interpret the PERM Rule as it applies to the different immigration recruitment methods.