9/12/2016
In the Matter of: ORACLE AMERICA, INC. (BALCA Case No.: 2012-PER-02194)
The Sunday newspaper advertisements required applicants to have “2-5 years experience,” which exceeded the Employer’s minimum requirement of “2 years of experience” on the Form 9089, in violation of 20 C.F.R. § 656.17(f)(6).
DOL considers 5 years to be the Employer’s minimum requirement (not 2 years). DOL considers preferences to be minimum requirements.
The BALCA panel found that the experience requirement range listed in the advertisements communicated a preference that applicants have more than two years of experience.
The panel concluded that “employer preferences are actually job requirements.” citing The Frenchway, Inc., 1995-INA-451 (Dec. 8, 1997) (pre-PERM)).
Therefore, “stating a range of experience in the recruiting materials that goes above the minimum experience requirements stated in the application inflates the job requirements in the job advertisements, and does not accurately reflect the Employer’s attestations on the ETA Form 9089.”
See also East Tenn. State Univ., 2010-PER-00038, slip op. at 11 (Apr. 18, 2011) (en banc) (finding that the “principle that employer preferences stated in recruitment will be treated as requirements for purposes of [] PERM” is valid).
Related Links:
PERM Overview
EB-2 vs EB-3
PERM FAQ
PERM / I-140 Ability Pay Requirement
PERM and Prevailing Wage Processing Times
PERM and I-140 Complete Do it Yourself Kit
PERM Attorney