Introduction: Matter of Waldorf School of Orange County

The Board of Alien Labor Certification Appeals (BALCA) issued a decision in the Matter of Waldorf School of Orange County, 2012-PER-01140 (Nov. 6, 2015) [PDF version] regarding the “additional recruitment steps” that an employer is required to undertake for the job position it is seeking labor certification [see category] for under 20 C.F.R. 656.17(e)(1)(ii). In Matter of Waldorf School of Orange County, the BALCA reversed the certifying officer’s (CO’s) decision to deny labor certification based on the determination that the Employer’s website advertisement and radio advertisement did not meet the regulatory requirements. This article will explain the facts of the case and the reasoning behind the BALCA’s decision.

The Facts of Matter of Waldorf School of Orange County

The Employer in this case filed an ETA Form 9089 to sponsor an alien for permanent residency in the United States as a teacher. The Employer reported on the Form 9089 that two of its recruitment efforts (to satisfy 20 C.F.R. 656.17(e)(1)(ii))1 included an advertisement on the Employer’s website (satisfying 20 C.F.R. 656.17(e)(1)(ii)(B))2 and a radio advertisement (satisfying 20 C.F.R. 656.17(e)(1)(ii)(J))3. The CO audited the application.

To support the website advertisement in its audit response, the Employer included screenshots from its computer displaying a web browser with the advertisement running alongside a time and date application. To support the radio advertisement, the Employer included a CD of the radio advertisement along with a broadcast contract between the Employer and a radio station.

The CO denied labor certification. With regard to the website advertisement, the CO stated that the Employer failed to provide dated copies of pages from the site as required by 20 C.F.R. 656.17(e)(1)(ii)(B). With regard to the radio advertisement, the CO stated that the Employer failed to provide a copy of the text of the radio advertisement as required by 20 C.F.R. 656.17(e)(1)(ii)(J).

The Employer requested that the CO reconsider its decision. With regard to the website advertisement, the Employer argued that the screenshot that included the time and date application functioned as a “time stamp” for purposes of satisfying the requirement in 20 C.F.R. 656.17(e)(1)(ii)(B). With regard to the radio advertisement, the Employer argued that providing written text of the radio advertisement was optional, citing the language of 20 C.F.R. 656.17(e)(1)(ii)(J) that it “can be documented by providing a copy of the employer’s text of the employer’s advertisement.” It further argued that because radio advertisements are communicated verbally, it made no sense to penalize an employer for providing evidence of the radio advertisement in verbal form.

After the CO declined to reverse the denial of labor certification, the Employer appealed the decision.

Decision: Matter of Waldorf School of Orange County

The BALCA reversed the CO’s decision to deny labor certification.

The Website Advertisement

The decision quoted the pertinent part of 20 C.F.R. 656.17(e)(1)(ii)(B): “the use of the employer’s Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” The BALCA then referenced the BALCA decision in the Matter of DGN Technologies, Inc., 2011-PER-1366 (Jul. 31, 2015) [PDF version] which held that the documentation requirement in 656.17(e)(1)(ii)(B) should be read with flexibility. The decision noted that BALCA panels have held previously that printouts with handwritten dates can be acceptable because the regulations only required that employers provide “dated copies” of the job posting.

Accordingly, the decision held that the Employer’s screenshots constituted “dated copies” to satisfy the regulatory requirement in 20 C.F.R. 656.17(e)(1)(ii)(B).

The Radio Advertisement

The BALCA panel in Matter of Waldorf School of Orange County concurred with the Employer’s view that the regulations do not require written text of the radio advertisement. It cited a previous BALCA decision in the Matter of Nine Muses And Apollo, Inc., 2011-PER-25 (Dec. 27 2011) [PDF version] which held that an audio recording of a radio advertisement is a “copy of the employer’s text” that satisfies the requirement in 656.17(e)(1)(ii)(J).

Accordingly, the BALCA panel reversed the CO’s decision to deny labor certification because the Employer did not submit written text of the radio advertisement.

Conclusion: Matter of Waldorf School of Orange County

The situation in Matter of Waldorf School of Orange County shows that an employer may run into problems even when it submits the required evidence to support its advertisements in the labor certification application process. An employer should always work with an experienced immigration attorney to satisfy the requirements in the labor certification application process and to be ready to appeal if labor certification is improperly denied.

  1. The regulation states: “(ii) Additional recruitment steps. The employer must select three additional recruitment steps from the alternatives listed in paragraphs (e)(1)(ii)(A)-(J) of this section. Only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application. None of the steps may have taken place more than 180 days prior to filing the application.”
  2. The regulation states: “(B) Employer’s Web site. The use of the employer’s Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.”
  3. The regulation states: “(J) Radio and television advertisements. The use of radio and television advertisements can be documented by providing a copy of the employer’s text of the employer’s advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.”