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Bloggings On PERM Labor Certification

by Joel Stewart

April 18, 2011

PERM: Proof of Publication on Website

An Employer received a denial for failure to provide copies of the start date and finish date of more than 10 days of advertisements on the Employer's websites and dated from the Internet Browser. I recommended the following language as part of a motion to reconsider:

"The Employer provided a copy of the advertisement from the employer’s website.  In addition, the Employer stated under penalty of perjury on the PERM Form 9089, and again in Recruitment Report submitted in response to the Audit Notification, that the job had been advertised on the employer’s website for more than 10 days.

While the PERM regulation recommends that, “The use of the employer’s web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application,” the world “can” in the phrase “can be documented” does not have the same legal meaning as “shall” or “must.”  In American jurisprudence, the word “can” is interpreted as “may.” Thus the clear meaning of the regulation is that dated copies are not required to be provided but “can” or “may” be provided at the discretion of the Employer.

By his signature in section "N" of Form 9089, the employer has taken full responsibility for the accuracy of the representations made in the PERM Application, Form 9089, and declared under penalty of perjury that he has read and reviewed the application and that to the best of his knowledge the information contained in the application is true and correct. The application states that the advertisement for the job vacancy appeared on the employer’s website from for more than 10 days. The employer reiterated this fact in the Recruitment Report that he signed. In addition, the employer submitted a cpoy of the advertisement from the employer’s website.

Based on this documentation, the employer has documented and attested to the appearance of the advertisement for more than 10 days on the employer’s website.

There is no mandate in the regulations that the employer must provide a print out of every single day that the advertisement appeared. Moreover, the regulations do not specify a particular number of days during which the advertisement must appear on the employer’s website. In the instant case, the Certifying Officer has a received a copy of the printout and the employer’s declarations under penalty of perjury that the advertisement actually appeared for more than 10 days.

Although the PERM Rule is silent as to the level of evidence requied to document recruitment, the Burden of proof to prove the advertisement is the preponderance of the evidence according to general administrative law principles.

Here, where the employer signed both the Form 9089 and the Recruitment Report, and the actual dates are documented on Form 9089, and in the absence of any indication to the contrary, the Employer has met its burden of proof both in the letter and spirit of the law that the advertisement for the job vacancy appeared on the employer’s own website on the dates so stated."

About The Author

Joel Stewart works exclusively in the area of immigration law. Joel Stewart has joined the Immigration Practice Group of the law firm of Fowler White Boggs as Of Counsel in the Firm's Fort Lauderdale office. Joel Stewart is the editor and author of THE PERM BOOK. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters and a popular speaker at immigration seminars for national and local bar associations throughout the United States. Mr. Stewart has been writing the BALCA Case Summaries for AILA and Immigration Law Today since 1987 and authors official AILA articles and publications such as the Visa Processing Guide for Procedures at U.S. Consulates and Embassies in Brazil and Portugal. Mr. Stewart writes weekly newspaper columns for the Brazilian Times and the Brazilian Paper and presents a weekly radio program in Portuguese on Radio Brazil.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.