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BALCA Affirms that Travel Language Must be Included in Advertisements

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The Board of Alien Labor Certification Appeals (“BALCA”) has historically determined that employers must indicate in advertisements that travel is expected when a sponsored position has a travel requirement. In Matter of IT Works International, Inc., BALCA upheld this precedent. In this case, the employer submitted a labor certification on behalf of a “Sales Manager – Technical.” In the ETA Form 9089, the employer stated that the position would require “work at various unanticipated locations throughout the U.S.” However, the newspaper advertisements that were conducted as part of the recruitment effort for this case failed to disclose this requirement. The case was audited and the Certifying Officer denied the case on the basis that the employer failed to disclose the travel requirement. The employer argued that its advertisements “increased the chances of qualified U.S. workers applying because some qualified potential applications who initially would not be willing to relocate might reconsider after the employer had the opportunity to interview them.” BALCA reviewed prior case law and the Office of Foreign Labor Certification’s FAQ’s on the PERM program and determined that the employer’s failure to state the travel requirements in the newspaper advertisements was a “clear violation of 20 C.F.R. § 656.17 (f)(4).” Consequently, the denial was upheld. BALCA has routinely found that employers must include travel requirements in advertisements if the sponsored role involves travel. The Hammond Law Group urges employers to include travel language in advertisements to avoid these types of denials and is happy to advise about appropriate language to include in advertisements that are part of a PERM recruitment effort. This post originally appeared on HLG's Views blog by Cadence Moore. http://www.hammondlawgroup.com/blog/

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