In Riverwalk Education Foundation, Inc., 2012-PER-02882 (July 3, 2013), BALCA held that PERM advertisements must contain any travel requirements. In doing so, BALCA pointed out that the Department of Labor (DOL) regulations require that PERM advertisements "indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity" (20 C.F.R. § 656.17(f)(4)).

In Riverwalk, the employer indicated on the PERM application and Notice of Filing that some day travel would be required in the job location's metropolitan area and to a city located about 150 miles away. This information was omitted from the advertisements placed to find US worker applicants. The DOL's Certifying Officer denied the PERM application because the advertisements contained terms and conditions that were less favorable than those offered to the foreign worker on the PERM application, a violation of 20 C.F.R. § 656.17(f)(7). BALCA agreed with the employer that the preference for travel lies in the eye of the applicant (travel will be a benefit for some applicants and a detriment for others) and therefore Section 656.17(f)(7) is an inappropriate basis for denial. BALCA found the geographical identification requirement in Section 656.17(f)(4) on point and denied the PERM on that basis. The DOL considered whether due process concerns should bar the decision, but determined that the DOL's interest in fostering opportunities for US workers is great, while the employer's interest in sponsoring a foreign worker is small. Since the employer admittedly did not include the requirement in the advertisements, the DOL found no due process violation.

This decision is consistent with prior BALCA cases (see, for example, Legal Update: August 2012: Immigration Law Updates: BALCA: PERM Advertisements Must Include Travel Requirements).

In Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013), BALCA found that omission of a foreign language requirement on the Notice of Filing is not fatal to the application. BALCA reversed the Certifying Officer's denial of the PERM, which was based on the lack of specificity in the job description due to the missing requirement (20 C.F.R. § 656.17(f)(3)). Rather, Section 656.17(f)(3), applied to Notices of Filing by Section 656.10(d)(4) (20 C.F.R. § 656.10(d)(4)), requires only that an ad contain sufficient detail for US workers to understand the nature of the job opportunity. BALCA found the job description, without the foreign language requirement, sufficient to apprise US workers of the opportunity.

In Seven Oaks Landscapes-Hardscapes, Inc., 2011-PER-02628 and 2011-PER-02471 (July 26, 2013), BALCA determined that the PERM regulations do not require employers to indicate posting dates on the employers' Notices of Filing (20 C.F.R. § 656.10(d)(1)(ii)). The Board found that the omission of any requirement that employers document the posting dates, particularly in a complicated, detailed regulatory scheme such as the PERM rules, signifies congressional intent on the subject. An employer is required to affirm on its PERM application that the Notice of Filing was posted, as required, for "at least ten business days in a conspicuous location at the place of employment, ending at least 30 days before but not more than 180 days before the date the application is filed" (see Form ETA 9089 Section I.e.25). The regulations do not require more.

In Chabad Lubavitch Center, 2011-PER-02614 (July 29, 2013), BALCA overturned denial of a PERM application that was denied by the Certifying Officer because the job order contained job requirements greater than the those on the PERM application. The employer's actual requirements on the PERM was 24 months of experience. The New York State workforce agency offered relevant experience requirement options as either "Mid-Career (2-15 years)" or "Intern, Entry Level (0-2 years)." The employer selected the mid-career option. The employer argued that it did not have control over the automatic listing and that the advertising requirements section, barring requirements that exceed those described on the PERM application, does not apply to job orders (20 C.F.R. § 656.17(f)).

The Board determined that Section 17(f)'s plain language does not relate to job orders. BALCA pointed out that job orders are clearly part of the recruitment process, but were specifically omitted from the advertising requirements (compare 20 C.F.R. § 656.17(e)(1)(i) and (e)(2) with 20 C.F.R. § 656.17(f)). The denial of the PERM application under Section 17(f) was therefore inappropriate.