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The Indian Eye
IMMIGRATION AUGUST 19, 2022 46
The Long, Windy, Bumpy, and
Outrageous Road to Labor
Certification feat. Two Sunday Ads
CYRUS D. MEHTA were unable to find qualified general circulation in the area newspaper to advertise the job position that the employer had
U.S. workers, the Department of intended employment most opportunity because with three never filled before or maybe this
JESSICA PASZKO* of Labor (“DOL”) continues to appropriate to the occupation day per week publishing and a unlucky employer’s labor certifi-
use these very technical require- and the workers likely to apply circulation of 97,573 copies, it cation simply fell onto the desk
t’s no secret that employ- ments as a pretext to deny labor for the job opportunity and most was the third largest newspaper of a particularly picky certifying
ers wishing to sponsor a for- certifications, as was the case in likely to bring responses from in the area of intended employ- officer at the DOL. Admittedly,
Ieign national for permanent Matter of Kolla Soft, Inc., 2018- able, willing, qualified, and avail- ment. Upon administrative re- the BALCA does seem to have a
employment must jump through PER-00184 (March 30, 2022). able U.S. workers.” view, the Board of Immigration point given that there exists a dai-
many bureaucratic hoops that In Matter of Kolla, an Ar- The DOL pointed to the Appeals (“BALCA”) found that ly newspaper in Phoenix which is
Congress once envisioned would izona based employer filed a newspaper’s “About Us” section the employer provided sufficient published more frequently and
ensure that foreigners are not PERM labor certification spon- on its website which stated that evidence on reconsideration circulated to a higher volume of
stealing jobs from U.S. workers. soring a foreign worker for per- the newspaper is delivered to demonstrating that the East readers. Maybe if the employer
One of those bureaucratic hoops manent employment for the po- selected areas in Mesa, Gilbert, Valley Tribune is a newspaper had proffered a good enough
in the PERM labor certification sition of software engineer. The Chandler, Tempe and Queen of general circulation in the reason for choosing the newspa-
process is conducting a series of DOL denied certification on the Creek only and not available for area of intended employment. per that it did to advertise for the
recruitment steps. In addition to grounds that the employer failed delivery or pick up in the Phoe- It ultimately affirmed the denial, position, for instance, because
conducting two mandatory re- to comply with the mandatory nix or Scottsdale area. On recon- however, due to the employer’s that particular newspaper was
cruitment steps, including plac- recruitment step of placing two sideration, the employer argued failure to state why the East Val- read by a higher number of U.S.
ing a job order with the State Sunday ads because the newspa- that the East Valley Tribune “is ley Tribune is the “most appro- workers seeking software engi-
Wage Agency and placing two per East Valley Tribune used by distributed through Maricopa priate to the occupation and the neer positions, the case would
print advertisements on two dif- the employer “is not a newspaper County, the largest populated workers likely to apply for the have turned out differently.
ferent Sundays in a paper of gen- of general circulation in the area county in Arizona which obvi- job opportunity and most like- By contrast, the BALCA held
eral circulation, employers must of intended employment most ously includes the county’s two ly to bring responses from able, in Matter of Gallup McKinley
also select any three out of ten likely to bring responses from largest cities, Phoenix and Scott- willing, qualified, and available Schools, 2013-PER-03215 (Oct.
additional recruitment steps that available U.S. workers.” Pursu- sdale.” According to the employ- U.S. workers” (emphasis includ- 3, 2017), that ads placed in local
are outlined in the regulations. ant to 20 C.F.R. § 656.17(e)(1) er, it was a given that the news- ed). Absent such evidence, the or ethnic newspapers, which em-
Although well intentioned and (i)(B), the employer must place paper would be available in the BALCA found that the record ployers may place to satisfy one
enacted to ensure that employ- “an advertisement on two differ- newspaper’s two largest cities in demonstrated that The Arizona of the additional recruitment
ers first demonstrate that they ent Sundays in the newspaper of its area of circulation in Mar- Republic, a daily newspaper in steps, need not comply with the
Phoenix, Arizona published sev-
same standard as the Sunday ad.
icopa County. In support,
the employer submitted an en days a week with circulation In that decision, the BALCA
affidavit from the publisher of 321,600 copies, rather than concluded that because the reg-
of the East Valley Tribune the East Valley Tribune, which ulation at 20 C.F.R. § 656.17(e)
stating that its newspaper is is published three days each (1)(ii)(I) does not contain sim-
available for home delivery week and a circulation of 97,563 ilar to § 656.17(e)(1)(i)(B)(1),
and in the cities of Phoenix copies, “is the most appropri- i.e., language requiring that the
and Scottsdale, Arizona, ate newspaper to advertise the ad be placed in a newspaper
and is a newspaper of gen- job opportunity and most likely “most likely to bring respons-
eral circulation throughout to solicit responses from U.S. es from able, willing, qualified,
Maricopa County, Arizona. workers.” Similarly, in a prior and available U.S. workers”, it
The employer also urged decision, Matter of Interconti- does not follow that an employer
the DOL to consider the nental Enterprises, Inc., 2011- must abide by the “most likely”
fact that the East Valley Tri- PER-02756 (July 30, 2012), the standard when selecting a local
bune has placed numerous BALCA similarly concluded that or ethnic newspaper. But still, if
PERM advertisements and the employer had not satisfac- the employer places such an ad
that its status as a newspa- torily compiled with the Sunday in bad faith, the DOL can deny
per of general circulation ad requirement because even the labor certification under the
has never been previously though it placed the ads in The catch all provision at 20 C.F.R. §
questioned. The employer Washington Examiner which had 656.24(b)(2) which provides, in
even submitted evidence a “reasonably large circulation”, pertinent part, that the “Certify-
that the newspaper updated the employer failed to establish ing Officer makes a determina-
its “About Us” section on its that it was the best choice for the tion either to grant or deny the
website and that it now in- job at issue. labor certification on the basis of
cludes Scottsdale as an area Business immigration prac- whether or not: . . . [t]here is in
of home delivery and retail- titioners who have failed to con- the United States a worker who
er distribution as well as ev- sider the significance of the regu- is able, willing, qualified, and
idence that the East Valley lation’s requirement that Sunday available for and at the place of
Tribune is the third largest ads be placed, not only in a news- the job opportunity.”
As business immigration
m of newspaper in Arizona. paper of general circulation but attorneys based in New York
also, in a newspaper “most ap-
Unconvinced by the
CYRUS D. MEHTA & PARTNERS PLLC employer’s arguments propriate to the occupation and City with corporate clients in
and mountains of persua- the workers likely to apply for New York City, we hardly ever
sive evidence, the DOL the job opportunity and most see employers place Sunday ads
affirmed the denial on likely to bring responses from in newspapers other than the
reconsideration. Accord- able, willing, qualified, and avail- New York Times. There is no
ing to the DOL, the reg- able U.S. workers” may be feel- doubt that the New York Times
ulations require “that the ing unsettled by the decision in is a newspaper of general circu-
mandatory advertisements Matter of Kolla. It appears that lation in New York, the tri-state
appear in the newspaper the employer in Matter of Kolla area, and maybe even the entire
most appropriate to the was no stranger to the PERM United States, but the decision
occupation and the work- labor certification process and in Matter of Kolla has left us
had placed ads in this particular
wondering whether the New
ers most likely to apply for
the job opportunity,” and newspaper before without issue. York Times is always the most
2 6th Floor the East Valley Tribune was Perhaps this particular labor appropriate newspaper. In light
not the most appropriate certification was intended for a of this decision, we cannot for-
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