DOL Changes Policy To Allow Electronic Ads In Special Handling PERM Cases

October 03, 2011

Updated: October 3, 2011

Department of Labor PERM FAQs [PERM FAQs, College and University Teachers - Recruitment, FAQ 6] now allow use of an electronic or Web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18 (PERM cases filed under "special handling" provisions for college and university teachers), but only under the following specific conditions: 

  • The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's Web site
  • Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.

Note that the first iteration of this new policy (published on August 31, 2011) also contained an additional requirement that "The electronic or web-based journal's job listings must be viewable to the public without payment of subscription and/or membership charges." On September 28, 2011, DOL revised the FAQ by removing that wording.

Hiring departments will have to be instructed on these conditions so that they may be incorporated into the process of how and where electronic ads are placed, monitored, and documented. It is also important to remember that the electronic venue must still meet the regulatory condition of being a "national professional journal," albeit an electronic one.

The FAQ now reads:

6. Is the employer permitted to use an electronic or web-based national professional journal instead of a print journal when conducting recruitment under 20 CFR 656.18, Optional special recruitment and documentation procedures for college and university teachers?

Yes, an employer may use an electronic or web-based national professional journal to satisfy the regulatory provision at 20 CFR § 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers. The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal's website. Documentation of the placement of an advertisement in an electronic or web-based national professional journal must include evidence of the start and end dates of the advertisement placement and the text of the advertisement.

September 28, 2011

Background: For years, DOL guidance had been that to satisfy the requirements of 20 CFR 656.18, an ad "must be placed in a national print professional journal." DOL changed its PERM FAQs on August 31, 2011 (albeit with the key restrictions listed above), in response to a July 20, 2011 BALCA decision [Matter of The University of Texas at Brownsville, 210-PER-00887 (BALCA, July 20, 2011)]. In that case, BALCA found that, unlike the standard labor certification provision at 20 CFR 656.17, the language in the special handling provision for college and university teachers at 20 CFR 656.18 does not limit advertisements to print publications. BALCA therefore held that that the DOL policy requiring ads be placed only in print publications for such cases "imposes a substantive requirement on employers that is not supported by the PERM regulations."