GLF has prepared the following draft referencing content in AILA8 (Doc. No. 22072651) dated July 26, 2022.
In a recent judgment in Matter of Kolla Soft, Inc., 2018-PER-00184 (March 30, 2022), BALCA adjudged that it’s the employer’s responsibility to prove that it had placed two print Ads in the “the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified and available US workers” as laid down in 20 CFR §656.17(e)(1)(i)(B)(1).
HISTORY OF THE CASE
If we look into the history of that case, the Certifying Officer rejected the PERM Application without giving an audit. The grounds were pretty simple that the employer violated the regulation by not using a newspaper of general circulation in the area of intended employment (Scottsdale, Arizona), which most likely to bring responses from available US workers. The reason of denying was, the said newspaper was not in general circulation in the areas of Phoenix and Scottsdale, Arizona. In response to that the employer requested reconsideration and presented various evidence trying to prove that the newspaper is being circulated in Maricopa County. Given that Phoenix and Scottsdale are the two largest cities in the county.
The CO sticked to his earlier decision and again denied the request, stating that the given newspaper was published three days per week, and had only third largest circulation in the area. The matter was referred to BALCA. BALCA also supported CO’s claim and expressed concern about the newspaper in question. Employer failed to provide proper justification about whether the said newspaper would bring the “most appropriate to the occupation and the workers likely to apply for the job opportunity and most likely to bring responses from able, willing, qualified, and available US workers .” It also stated that the newspaper which are published seven times a week and had great circulation can get the most likely seek responses from US workers.
Following questions was raised to OFLC
- How should employers complete the mandatory Sunday newspaper advertisements when there is no Sunday newspaper of general circulation in the area of intended employment?
- Currently there are no Sunday newspapers in the State of North Dakota. The newspapers in North Dakota have transitioned to weekend editions released on Saturdays.
OFLC responded that employers should still be placing their Sunday newspaper advertisements in the weekend edition of the newspaper. Whereas on the ETA Form 9089, in response to Section I.c.8- Whether there is a Sunday edition of the newspaper in the area of intended employment, the employer should say “No.” and mention the newspaper’s name in Section I.c.9, and state “Weekend Edition – No Sunday edition available.”
BALCA’s Decision highlighted the need for OFLC to maintain a list of newspapers that no longer offer Sunday print editions but have transitioned to other hybrid offerings, such as weekend editions.
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