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.

Client Reviews

I've had the pleasure of conducting business with this law firm for the last 10 years. They have been nothing but the best for every aspect of immigration need I had. From F1 all the way to citizenship. They're probably the most affordable, knowledgeable, and most efficient immigration law firm out there. Plus, they always provide responses to questions in a very timely manner. Trust me, other immigration law firms will cost you an arm and a leg for the same or less of a service compared to this law firm. Give them a call, check out their website. You will not regret it.
Andy Glasgow
Andy Glasgow
17:26 27 Mar 17
Because of John and his team my wife and I were able to travel back to the states, get married and have a Green Card without any headaches. John’s efforts were amazing and it shows because my wife and I didn’t have to go to the Green card interview. We had a strong enough case to receive the Green card in the mail. If you’re seeking a Lawyer that will be impartial, he’s your guy.
T M
T M
19:18 23 Feb 17
Me & husband went through immigration process which thankfully was made easy with the help and services of Marc Tyler Inc. Our direct contact was John which i want to personally say Thank You ! The service provided was efficient, fast, affordable prompt answers in a timely fashion. I would recommend Marc Tyler Inc to anyone who need immigration done fast, easy, friendly & with no hidden charges.
Aleksandra Stoycheva
Aleksandra Stoycheva
15:27 26 Jan 17
I could not have asked for better service. I will definitely be coming back to get the green card process done. The fees are extremely reasonable and they stick with their clients the entire way. I had so many questions during this process, and each one of them were answered very quickly and with out most professionalism. This firm is a pleasure to work with and I highly recommend them to anyone.
bryan mowrey
bryan mowrey
06:41 25 Nov 16
Marc and John Dorer worked on our case to file for AOS after our L1A was approved.Marc and John are professionals and extremely reasonable-priced. The reason they are able to cut the price is because they don't spend time consulting you or guiding you and will never get on call.All communications are email only, so if you know precisely what you want they will do all the paper-work, follow the trail and get the job done. If you are confused and need advice and consulting, they may not be the right lawyers.But since we were doing our AOS, it worked out perfectly well and they did their job extremely professionally.Would recommend them every time to get the work done.
hardik parikh
hardik parikh
01:58 08 Feb 17
At first I thought I could have very well gone through the green card application process on my own and saved all lawyer fees. Its funny how some lawyers can charge in excess of 2K for this. However at Taylor and Associates the price seemed more reasonable and felt it made sense to go with one at that price. There were some doubts that arose in our mind which they cleared in a timely manner and seemed very knowledgeable in this area. Its for moments like these when having a professional around helps. While we can get busy with our lives and with laws constantly changing, I would definitely recommend them - a small price to pay for peace of mind.
Callistus Pereira
Callistus Pereira
17:51 06 Jun 17
I am US citizen. We hired Marc's firm for my wife's Green Card process, We are extremely happy with their services.They are one of the best service providers in the country. Price is very affordable. John is awesome. He responded to our queries on time with very useful information. We highly recommend this firm to anybody looking for affordable and the best immigration services. it was an awesome experience working with this team.
Narsimha M
Narsimha M
13:57 04 Aug 17
Mark and team went above all my expectations of an 'online' service agency I went in with very low expectations to match the low cost of the service and was amazed that the experience was no different than going through an expensive attorney. They were very prompt on responses, very patient and also very knowledgeable on every facet of the application (including a follow up checklist). I would highly recommend them considering the low cost they charge and the high risk we take by doing this ourselves
First Dhalsite
First Dhalsite
22:27 01 Sep 17
USVISANOW streamlined the paperwork which saved us so much time. This also reduced the stress involved in filling out the paperwork. They also are very understanding and respond very quickly to questions and emails. Jackline is now a US citizen which took less than 5 months. Thank you Mr. Taylor and your team. From Brian and Jacky.
Jackline Osero
Jackline Osero
17:32 12 Sep 17
The best law agency I have ever worked with. Very responsive, experienced. I trusted my green process to them and it was done perfectly without and issues in minimum possible period. Thank You Very much Marc, John and others!!!
Hrach Gyulzadyan
Hrach Gyulzadyan
16:38 30 Sep 17
My husband and I worked with John Dorer from Marc Taylor's office, and his services exceeded our expectations. He was very knowledgeable, responsive, and our Green Card process and interview from start to finish went smoothly. Thank you so much, John, for your dedication to our case and all your help. I would highly recommend USAVISANOW to all!
Sophia Nguyen
Sophia Nguyen
17:26 09 Oct 17
Marc and John helped me apply and get my green card. They are very specific about needed documents and other details. Also, they are very responsive when you have a question. I know I emailed them several times just to ask questions that I could have found answers online myself. They are very patient and professional. If you want to get great services with reasonable fees contact them!
Amin Bagheri
Amin Bagheri
11:54 12 Oct 17

Read More Client Reviews