Matter of Dr. Deza – Ad listed the employer as “confidential” but the name of the employer was disclosed in the advertisement

BALCA found that the employer’s job search web advertisement met the requirements of 20 CFR §656.17(f) where the search results listed the employer as “confidential” but the name of the employer was disclosed in the advertisement itself. (Matter of Dr. Deza, 2/11/11)

Issue Date: 11 February 2011
BALCA No.: 2010-PER-00113
ETA No.: C-07220-64259

In the Matter of: DR. DEZA’S DENTAL OFFICE,
Employer, on behalf of RENAN CHIRINOS, Alien.

Certifying Officer: William Carlson
Atlanta Processing Center

Appearances: Maritza Diaz, Esq.
New York, NY
For the Employer

Gary M. Buff, Associate Solicitor
Stephen R. Jones, Attorney
Office of the Solicitor
Division of Employment and Training Legal Services
Washington, DC
For the Certifying Officer

Before: Malamphy, Sarno, Krantz
Administrative Law Judges

DECISION AND ORDER VACATING DENIAL OF CERTIFICATION

This matter arises under Section 212 (a)(5)(A) of the Immigration and Nationality Act, 8 U.S.C. §1182(a)(5)(A), and the “PERM” regulations found at Title 20, Part 656 of the Code of Federal Regulations (“C.F.R.”).

BACKGROUND

On August 30, 2007, the Certifying Officer (“CO”) accepted for filing the Employer’s Application for Permanent Employment Certification for the position of “Dentist.” (AF 39-48).1 On October 2, 2007, the CO issued an Audit Notification. (AF 35-37). In the Audit Notification, among other documentation, the CO required the Employer to submit recruitment documentation. (AF 35).

On October 31, 2007, the Employer responded to the Audit Notification. (AF 9-34). Included in the response were its recruitment report and a copy of an advertisement placed on a job search Web site. (AF 33).

The CO denied certification on March 9, 2009. (AF 7-8). The CO stated that the reason for denial was that the recruitment conducted through the job search Web site other than the employer’s failed to identify the name of the employer as required by 20 C.F.R. § 656.17(f). The CO stated: “Specifically, the employer name is listed as “confidential” and therefore will not appear in the search results or job listings pages.” (AF 8).

On March 16, 2009, the Employer submitted a request for review. (AF 2-5). The Employer stated that “the job search web site advertisement on http://hotjobs.yahoo.com contains both the employer’s name and complete street address.” The Employer attached a copy of the job listing page it had previously submitted in response to the Audit Notification and went on to say: “Applications conducting a search for a ‘dentist’ position will be able to identify the employer in search results and make a determination as to whether they wish to apply for the advertised position. This is not a blind advertisement and the advertisement can be clearly matched to the sponsored job opportunity.”

On November 18, 2009, the CO notified the Employer that it had not overcome the deficiencies upon which the denial of certification was based and that the case would be forwarded to BALCA for review. (AF 1). The CO explained:

Though the employer includes its name and address with the advertisement content, the information initially presented to interested individuals via the Search results would only show the employer’s name as listed with Yahoo! (in this instance, “confidential”), the position title, location and the date posted…. Unless an individual selects the hyperlinked job opportunity, the content of the advertisement and the employer’s name is not available.2

The CO forwarded the case to BALCA on November 19, 2009, and BALCA issued a Notice of Docketing on December 7, 2009. The Employer filed a Statement of Intent to Proceed on December 16, 2009. The Employer did not file an appellate brief. The CO filed a Statement of Position on January 22, 2010, arguing that the advertisement did not comply with 20 C.F.R. §§ 656.17(e)(1)(ii)(C) and 656.17(f)(1) because “even though the name of the employer did ultimately appear elsewhere in the advertisement, because (sic) DDO’s identification of the employer as ‘confidential’ deprived prospective job applicants of necessary information and created potential for confusion.”

DISCUSSION

One of the recruitment methods an employer may use under 20 C.F.R. § 656.17(e)(1)(ii)(C) is placing an advertisement on a job search Web site other than the employer’s. Such an advertisement must comply with the requirements at 20 C.F.R. § 656.17(f)(1). Those requirements include that the advertisement “name the employer.” In the preamble to the final rule implementing the PERM regulations, the CO responded to commenters who objected to this requirement:

Despite the objections of some commenters, the employer’s name must appear in the advertisement. Review of employment advertisements clearly indicates the vast majority of these advertisements include the employer’s name. The employer’s name allows potential applicants to identify the employer, and applicants will be able to better determine if they wish to apply for the advertised position. Applicants also may be unwilling to submit resumes to a blind advertisement, as they can not tell who will receive their resume. Requiring the employer’s name in the advertisement also allows us to match the employer’s advertisement to the sponsored job opportunity in the event of an audit. We have concluded these benefits outweigh confidentiality concerns of employers. In addition, we note employers are required by statute to provide notice that the employer is seeking a labor certification for the job opportunity, making it unlikely any of the job information is in fact confidential in nature. See 8 U.S.C. 1182 note.

ETA, Final Rule, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 CFR Part 656, 69 Fed. Reg. 77326, 77348 (Dec. 27, 2004). See Dunkin’ Donuts, 2008-PER-135 (Jan. 5, 2009). Moreover, as the panel in Parkside Construction Contractor, Inc., 2009-PER-16 (Jan. 9, 2009) (per curiam), noted, an employer’s failure to include its name in the advertisement makes it impossible to know whether additional applicants might have applied if the name had been included.

In the instant case, the advertisement itself did contain the name of the Employer. It directed applicants to send their resume to “Deza’s Dental Office. Attn: HR, 23080 Alessandro Blvd. 201, Moreno Valley, CA 92553.” The CO does not dispute that, but argues that the company name should also have been included on the initial search page that lists the results of a search for job postings. That page is generated by the indexing function of the internet company on which the advertisement was posted. The page lists all job postings that correspond to the parameters set by the searcher and includes columns for the job title, company name, location, and date. In the instant case, the space for the Employer’s name was filled in as “confidential,” and that is what the CO cites as the reason for denial. The remaining blanks on the page listed the job title as “dentist;” the location as “Moreno Valley, CA;” and the date as “July 8, 2007.” When a searcher clicked on the listing information he would be taken to the advertisement itself, which included a space to enter text. In that space, the Employer in the instant case described the job, job requirements, and listed the employer’s name and address to send resumes to.

We recognize the goal of the regulations in allowing a potential applicant to identify the employer so as to decide whether to apply as well as to facilitate the CO’s ability to match the advertisement to the job opportunity during the application process. We believe in the instant case those goals were met. The regulations require the advertisement contain certain information, including the employer’s name. The regulations make no such requirements for a search listing used to access the advertisements. In the instant case, a prospective employee searching for a dentist job in Moreno Valley, California would have been able to search for and find the Employer’s advertisement and, by clicking on the limited information available on the search listing, view the advertisement itself, including the full information needed to apply for the position. The text of that advertisement as written by the Employer included the Employer’s name.

A print advertisement must stand on its own content. It has no equivalent to clicking on a link for more information. A job advertisement in a newspaper or magazine analogous to this situation would be cumbersome. Such an announcement would be printed in the classified advertising section with a description of the position and the location, but without the name of
the employer. Potential applicants would have to contact an anonymous mailbox or telephone number to reach the employer. In that case the advertisement–the document printed in the periodical for the public to see–would fail to satisfy the requirements of Section 656.17(f)(1). Employers can and do use such advertisements to fill some positions, but they are not sufficient to meet the requirements for a permanent employment certification.

In this case, the Web page that listed search results did not contain all of the information required under Section 656.17(f)(1), but that page was not the advertisement. Furthermore, a potential applicant could get from that page to the advertisement with a simple mouse click, rather than the tedious process of contacting an anonymous entity that would be necessary with a deficient print advertisement.

We find that in these precise circumstances upholding the denial of certification is not warranted. Therefore, in the interest of fundamental fairness we vacate the denial of certification, and return this application to the CO to consider whether the text of the advertisement and other audit response documentation complied with the regulations, and whether certification should be granted. This decision should not be construed as support for requiring the CO to reconsider a case where the Employer does not list its name in the text of the advertisement or otherwise omits information that would prevent a potential applicant from finding a job opportunity using an online search.

ORDER

IT IS ORDERED that the denial of labor certification in this matter is hereby VACATED and that this matter is returned to the CO for completion of processing.

For the panel:

RICHARD K. MALAMPHY
Administrative Law Judge

RKM/AMC/jcb
Newport News, Virginia

1 In this decision, AF is an abbreviation for Appeal File.

2 Although the CO stated a copy of a search page was attached, we note it was not part of the Appeal File.

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