The State Job Order and the Print Advertisement Rules
The content rules for a recruitment advertisement are short and absolute. An advertisement that says too much is as fatal as one that says too little, and the proof an employer keeps is a piece of paper the publisher will not reissue later.
The rule in short
The job order is placed with the state workforce agency serving the area of intended employment and runs for a period fixed by regulation, with the start and end dates entered on the application. Two advertisements run on different Sundays in the newspaper of general circulation most appropriate to the occupation. An advertisement must name the employer, describe the vacancy and the area specifically, and may not state requirements exceeding those filed.
Two of the recruitment steps are prescribed in detail: the job order and the newspaper advertisements. Both have rules about where they go, how long they run and what they may say. An advertisement that overstates the requirements is as defective as one that omits the employer's name, and the proof of either is a physical artifact the publisher will not reissue.
The job order
The order is placed with the state workforce agency serving the area of intended employment and runs for a period fixed by regulation. The start and end dates entered on the application serve as the documentation, which means a mistyped date is a defect on the face of the filing.
Keep more than the dates. Agencies vary in what they issue, but a confirmation screen, an email acknowledgment or a printed copy of the posting with its identifier should be captured at placement. Where the order is later reposted or edited, capture that too, because the run has to be continuous for the required period and an interrupted posting restarts the analysis.
Two Sundays, and which paper
The advertisements run on two different Sundays in a newspaper of general circulation in the area of intended employment. The paper must be the one most appropriate to the occupation and most likely to bring responses from able, willing, qualified and available domestic workers.
Two questions follow. Is the publication of general circulation in that area, meaning it circulates broadly rather than to a defined subgroup? And is it the most appropriate for this occupation? A metropolitan daily is almost always defensible. A free weekly, an industry sheet or a paper circulating in a neighboring market usually is not. Where the area has no Sunday edition, the edition with the widest circulation substitutes.
The professional journal substitution
For a position requiring experience and an advanced degree, one of the two Sunday advertisements may be replaced by an advertisement in a professional journal. The substitution is narrow: it applies to that category of position, it replaces one placement rather than both, and the journal must be one that would reasonably reach candidates for the occupation.
The proof is different in kind. For a journal the employer keeps the cover and the page bearing the advertisement, so that the publication, the issue and the content are all visible in one exhibit. A photocopy of the advertisement alone does not establish where it appeared.
| Placement | Where it runs | Duration | Proof retained |
|---|---|---|---|
| State job order | The agency for the area of employment | A fixed continuous period | Confirmation with start and end dates |
| Sunday advertisement | Newspaper of general circulation | Two separate Sundays | Tear sheet naming the paper and date |
| Professional journal | A journal reaching the occupation | One placement | Cover and the page bearing the ad |
| Employer website | The employer's own careers page | Varies by step | Dated capture showing the run |
| Job search website | A site other than the employer's | Varies by step | Dated capture plus the invoice |
What an advertisement may and may not say
The mandatory content is short. The advertisement names the employer. It directs applicants to report or send resumes to the employer, or as the regulation otherwise permits. It describes the vacancy with enough specificity to apprise a reader of the job opportunity, and it indicates the geographic area of employment with enough specificity that a reader can tell where the work is.
The prohibitions matter more. The advertisement may not contain a wage lower than the prevailing wage. It may not contain job requirements or duties exceeding those on the application. It may not offer terms and conditions less favorable than those offered to the sponsored worker. And it may not be drafted to discourage applications, which is the standard that catches copy describing a position nobody could plausibly fill.
The requirements stated on the application are themselves constrained, and where they exceed the occupational norm they must be justified, as set out under business necessity for requirements above the normal minimum. The underlying discipline is the one that governs any regulated claim in print, where what the copy says and what the file can prove have to match, as with substantiation before a claim is made.
The most common defect is copy written by a recruiting team for a general hiring campaign and reused for the filing. That copy typically lists preferred qualifications, mentions a competitor's technology, states a salary band with a low end below the determination, and never names the employer. Each of those is a defect. Draft the program advertisement separately, from the application, and let the recruiting campaign run on its own text.
The tear sheet, and other proof
For a print placement the proof is the tear sheet: the page as printed, showing the name of the newspaper and the date of publication along with the advertisement. A publisher's affidavit is a workable substitute where the paper provides one. An invoice alone is not, because it establishes that something was paid for rather than what appeared.
Collect the proof at the time. Newspapers archive selectively, back issues are sold for a limited window, and a placement made through an agency may leave the employer with no direct relationship to the publisher at all. An audit demand arriving long afterward gives a short period to produce documents nobody can now obtain, on the deadline described under the audit notification and the supervised recruitment that can follow.
The whole sequence in which these placements sit, and the windows each must fall inside, is set out under the required recruitment steps and the order they must follow. Nothing about the content rules is difficult; the difficulty is that the copy is usually written by someone who has never read them.
That is why employers running a first filing generally have labor certification attorney approve the advertisement text before it goes to the publisher. A printed defect cannot be corrected, the placement has to be run again, and running it again pushes every downstream date, including the quiet period and the wage determination window, out by weeks.
Points to carry away
- The job order goes to the workforce agency serving the area of intended employment and runs for a fixed period.
- The start and end dates entered on the application serve as documentation of the job order.
- Two advertisements run on different Sundays in the newspaper of general circulation most likely to bring responses.
- One Sunday advertisement may be replaced by a professional journal placement for certain advanced positions.
- An advertisement may not state requirements exceeding those on the application or terms less favorable than those offered.
- Proof of a print placement is the tear sheet showing the name of the publication and the date.
Questions readers ask
Must the advertisement state the wage?
It need not. Where a wage or a wage range is stated, the figure may not be lower than the prevailing wage for the position, and the bottom of any range is treated as the offered wage. Employers frequently include a range for recruiting reasons and then discover the low end sits beneath the determination. If a figure is included at all, check it against the determination before the copy goes to the publisher, because a printed advertisement cannot be corrected retroactively.
May the advertisement list the job requirements?
It may, but it does not have to, and every requirement printed becomes something the employer must have applied consistently. Where requirements are listed, they may not exceed those stated on the application. The safer practice is a description of the vacancy specific enough to apprise a reader of the opportunity, without a full requirement list, since a shorter advertisement offers fewer points of inconsistency between the printed copy and the filed application.
What proof is acceptable for an online placement?
A dated capture of the posting showing the text, the employer name and the dates the posting was live. For a job search website the capture should include the site identity and the posting identifier. Employers often keep only an internal record that a posting was made, which proves nothing about content or duration. Where the site provides a receipt or an invoice showing the run dates, keep it with the capture, since the two together are difficult to dispute.
Sources
- eCFR — 20 CFR 656.17, Basic labor certification processThe job order, the Sunday advertisements, the journal substitution and the advertising content rules.
- eCFR — 20 CFR 656.10, General instructions for labor certificationThe notice of filing and the retention period for advertising documentation.
- eCFR — 20 CFR 656.18, Optional special recruitment for college and university teachersThe alternative advertisement rules for certain teaching positions.
- eCFR — 20 CFR 656.40, Determination of prevailing wageThe figure against which any wage stated in an advertisement is measured.
- eCFR — 20 CFR 656.20, Audit proceduresThe demand under which tear sheets and job order records must be produced.
- Foreign Labor Application Gateway — Permanent labor certification programThe application on which the job order dates are entered.
Lawwise is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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