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BALCA Determines that Handwritten Date is Permissible in Website Postings

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The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether handwritten dates on website postings that are completed as part of the recruitment for a labor certification case are permissible. In Matter of DGN Technologies Inc., the employer’s labor certification case was selected for audit and the employer provided evidence that it had posted the position on its website as one of the additional recruitment steps. The website postings contained a handwritten note stating that “continuous posting [had occurred] since June 1, 2008.” The Certifying Officer denied the case on the basis that the employer had failed to offer dated copies of its website advertisement. The federal regulations provide that an employer can demonstrate that it conducted recruitment on its website through dated copies of pages from that site. This evidence will constitute “primary evidence.” However, the Department of Labor’s Employment and Training Administration provides in its FAQ’s that an “affidavit from the official with the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job” is also permissible.” In reviewing this information, BALCA determined that the regulations only state that dated copies must be provided. They do not “specify that the date be generated electronically, nor does it require that the date be accompanied by a signature or attestation of the authorized person responsible for the posting.” Consequently, BALCA reversed the denial of the labor certification. This case provides critical information that discusses what types of evidence are permissible to document that an employer posted a position being sponsored through labor certification on its website. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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