In all PERM cases, the position must be advertised in the local newspaper of “general circulation.” This situation often creates a quandary for employers because they want to get this right, but also want to spend as little as possible on the advertisements. So the question because “do I advertise in the New York Times or the New York Post?” or “do I advertise in the Washington Post or the Washington Examiner?” The Post/Examiner situation in Washington seems to have been litigated extensively in recent cases that I’ll comment on below (though apparently the Examiner no longer publishes a Sunday edition so this specific issue of tension no longer exists).
The basic applicable law on this topic can be found at Section 656.17(e)(2)(ii), relating to newspaper advertisements. It requires, as a pre-filing requirement for nonprofessional occupations, under subsection (A), “[p]lacing an advertisement on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity.” For professional occupations, there is the additional requirement that thenewspaper be “most likely to bring responses from able, willing, qualified, and available U.S.workers.” 20 C.F.R. §656.17(e)(l)(i)(B)(l).
My advice to employer clients is always: “You cannot go wrong by choosing the biggest paper in the area, so it’s really in your best interest to pony up the money,” even if it’s 3-4x what the little brother paper would cost. Easy for me to say since it’s their money, not mine. But still, the reality is that there is generally only going to be one newspaper that fits the bill in a region. If you go with a different one, you’re definitely risking denials at the PERM stage. If those cases are denied, getting them overturned would be an uphill slog… and would take years and be pretty costly (more than the differential of cost between the obviously ideal paper and the other option you might wish to argue could fit the definition).
Anyway, here was one local [note: not anymore] case in Manassas that was actual overturned on this Washington Post/Examiner issue. But the only reason why was that the DOL officer who initially decided the case cited the wrong section of the law in his or her decision and did not back it up with any analysis. So this was a win, but it was on a technicality and clearly would have gone the other way if the officer had given either the right section of the law in his or her decision OR if they gave any details as to “why” they were concluding as they were.
This was another interesting decision (and again local). In this case, the position was a server at a country club and the job was advertised in the Washington Examiner. The employer successfully argued that was the most appropriate place to advertise for the position. The argument was that it was a free paper, so an unemployed person looking for a job would be more likely to look there than in the more costly Sunday edition of the Washington Post. I don’t know how compelling that is (but then again, who is really looking for jobs in print newspapers in 2019, though the law still requires posting in them). Anyway, for the employer, I suppose all’s well that ends well. On the other hand, this decision runs through a number of similar decisions that resulted in conflicting law on the topic.
The key takeaway is that a lot of this can go either way. I also think the law is really tricky here. The idea is that only one newspaper can be considered the one of “general circulation” and thus be the appropriate venue. While you generally cannot go wrong going with the biggest local paper, these decisions where BALCA essentially concludes a secondary paper is “the best” (and thus only appropriate) place in which to advertise a position are troubling. But anyway, I tend to think that’s only something that comes along at the end of this process, and only when a secondary paper is chosen in the first place. I do not really think an employer can go wrong (in almost all cases) by just choosing the biggest local paper and advertising there because I don’t think a certifying officer at DOL will see “Washington Post” (or whatever) and want to take on a fight that the ad should have been elsewhere; it’s only when the ad is placed elsewhere that this discussion seems, in reality, to come into play.
Originally published here: https://www.permlabor.com/blog?offset=1562593855982&reversePaginate=true