Chicago Immigration Lawyer Blog
The Chicago immigration lawyers of Zneimer & Zneimer file many employment-based applications and petitions, including PERM. We are very experienced in this area and study appellate decisions and regulations closely to ensure that all issues are properly resolved. For the PERM labor certification, employers are required to advertise job openings. Per the guidelines in 20 C.F.R. § 656.17(e)(1)(i)(B)(1), this advertising should occur on two separate Sundays in the largest newspaper of general circulation in the area of intended employment. This ensures the job is highly visible to U.S. workers. The job’s location, termed ‘Area of Intended Employment’, is the usual commute distance from the workplace. If the job is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), it is automatically considered within commuting distance. However, jobs outside these areas can still fall within a commuting distance. Importantly, there’s an exception for rural areas. If a rural area lacks a Sunday newspaper edition, 20 C.F.R. § 656.17(e)(1)(i)(B)(2) allows employers to advertise in the most popular edition, eliminating the need for a Sunday advertisement.
If the Area of Intended Employment does not have a Sunday newspaper, the employer cannot use the Rural Area Exception, unless the area is in fact rural. If it is not, then the employer must use the largest newspaper of general circulation with a Sunday edition that serves the area.
For example, in one case an employer sought a Permanent Employment Certification for the position of “System Performance Program Manager.” The Certifying Officer (CO) had denied the application since the newspaper the employer used for job advertising had limited circulation and no Sunday edition The employer countered by stating there was no newspaper with a Sunday edition in the area of intended employment, and they used the Rochester Post Bulletin which had the most extensive circulation in the area.The CO still held that the job was noy in a rural area, which means the employer had to meet the usual Sunday edition requirement.
The BALCA decision noted that rgw job was located in Rochester, Minnesota, which is within an MSA, making it urban, not rural. The employer did not advertise in a Sunday edition newspaper as required.Even if Rochester’s local newspaper did not have a Sunday edition, the employer should have used a more prominent city’s newspaper’s Sunday edition that serves the Rochester area, as per the regulations.The employer could not demonstrate that a Sunday edition from a bigger city (St. Paul/Minneapolis) did not serve the intended employment area. The CO’s denial of the employer’s application was upheld because the employer failed to meet the required advertising standards for the PERM application. The employer couldn’t utilize the rural area exception as Rochester is not considered a rural area.
Important legal points:
- Sunday Advertising Requirement: According to 20 C.F.R. § 656.17(e)(1)(i)(B)(1), employers must advertise on two different Sundays in a newspaper of general circulation in the intended employment area. The intent is to provide maximum visibility to U.S. workers.
- Definition of ‘Area of Intended Employment’: Defined as the normal commuting distance of the employment address. If the job is within a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA), anywhere within that area is considered as within the normal commuting distance. But being outside an MSA or PMSA doesn’t necessarily exclude it from being within a commuting distance.
- Rural Area Exception: The regulations (20 C.F.R. § 656.17(e)(1)(i)(B)(2)) provide an exception for rural areas that do not have a Sunday edition newspaper. In such cases, the employer can advertise in the edition with the widest circulation. To use the rural area exception, the employer has to show not only that there is no Sunday edition of a newspaper, but also that the area of intended employment is indeed rural.
This case shows that to file PERM often we have to analyze many aspects of the job. If you need assistance with PERM or other employment-based application or petition, contact our office. We have filed successfully many PERMs, I-140, NIW, PNIW, EB-1, and other type of employment-based caes.