The PERM labor certification process requires completion of many steps by the sponsoring employer, including conducting a test of the local labor market by engaging in recruitment activities for the position offered. The information below is intended to guide you with respect to the pre-filing recruitment requirements and also with respect to filing the actual ap-plication with Department of Labor (DOL), as well as discussion of possible post-filing steps.

1. Recruitment

The permanent labor certification process requires the following recruitment efforts for all applications, which must be completed between 30 and 180 days prior to filing the permanent labor certification ap-plication:

• Advertisements placed on two different Sundays in a newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to ap-ply for the job opportunity and most likely to bring responses from able, willing, qualified, and available U.S. workers. For professional positions, if the job involved in the application re-quires experience and an advanced degree, and a professional journal normally would be used to advertise the job opportunity, the employer may, in lieu of one of the Sunday advertisements, place an advertisement in the professional journal most likely to bring responses from able, willing, qualified, and available U.S. workers. Copies of the newspaper tear sheets (and journal advertisement if applicable) should be retained.
• A job order should also be placed with the State Workforce Agency (SWA) for a period of at least 30 days. This usually involves a job order on the state job search website that the SWA uses to post job opportunities. It is recommended that you retain a copy of the job order that was posted by the SWA for retention within the audit file.
• There are additional requirements for applications that involve a job offer for a professional position. These additional recruitment efforts must also be completed between 30 and 180 days prior to filing the permanent labor certification application (although, however, one such step may occur within the 30 days preceding the labor certification filing date).

The employer must select three additional recruitment steps from the alternatives listed below:

o          Job fairs. Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.

o          Employer’s website. The use of the employer’s website as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.

o          Job search website other than the employer’s. The use of a job search website other than the employer’s can be documented by providing dated copies of pages from one or more websites that advertise the occupation involved in the application. Copies of webpages generated in conjunction with the newspaper advertisements can serve as documentation of the use of a website other than the employer’s.

o          On-campus recruiting. The employer’s on-campus recruiting can be documented by providing copies of the notification issued or posted by the college or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.

o          Trade or professional organizations. The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for labor certification.

o          Private employment firms. The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved in the ap-plication.

o          Employee referral program with incentives. The use of an employee referral pro-gram with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.

o          Campus placement offices. The use of a campus placement office can be document-ed by providing a copy of the employer’s notice of the job opportunity provided to the campus placement office.

o          Local and ethnic newspapers. The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer’s advertisement.

o          Radio and television advertisements. The use of radio and television advertisements can be documented by providing a copy of the text of the employer’s advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.

At this time, an individual at the sponsoring employer should be designated as the person to accept all inquiries from the recruitment efforts. This person is usually the human resources manager or some other senior manager who usually makes hiring decisions for the company for this type of job. Once the advertisements and other recruitment efforts have been started, all employees of the sponsoring employer that normally answer incoming telephone calls, or review the incoming mail, should be aware of the job offer and forward all inquiries to the company’s designated individual responsible for this matter.

1. Notice

The employer must give notice of the filing of the Application for Permanent Employment Certification to the bargaining representative (if any) of the employer’s employees. If there is no bargaining representative, notice must be provided to the employer’s employees at the location of employment. The employer must document that notice was provided. The notice must be posted for at least 10 consecutive business days where the employees can readily read it. The notice may be posted in the immediate vicinity of other federal and state wage, hour, and safety notices. In addition to posting a hard copy of the notice, the employer must also publish the notice in any in-house media, in keeping with the employer’s normal recruitment procedures for similar positions.

If the company recruits internally through electronic or printed material, please make sure that a copy of the notice is published. We have also prepared a statement for the employer to sign that provides information on when and where the notice was posted. After the 10-day posting period, the statement should be completed, signed, and kept. Also save the posted notice, and a copy or printout of any in-house publication.

III. Applicant Analysis and Interview Process

Employers are required to act in good faith with respect to their efforts to locate U.S. workers who are able, willing, qualified, and available for the position being offered. In the labor certification context, the standard of review as applied to U.S. worker applicants is a “minimally qualified” standard and not a competitive standard as would typically occur in a real business-world setting. As the sponsoring employer, you may not reject applicants who are “overqualified” or who perhaps are not the “most qualified” of all applicants. As a general rule, if an applicant appears to possess the minimum job requirements, he or she is “qualified” in the labor certification context.

Part of demonstrating the employer’s “good faith” is the act of timely reviewing résumés from interest-ed U.S. workers who apply for the position. U.S. workers shall only be rejected on the basis of résumé review if it is clear on the face of the résumé that the minimum requirements are not met (i.e., the applicant does not possess the requisite degree, etc.). In instances where it is not clear on the face of the résumé whether the applicant qualifies, the employer should conduct interview(s) to make a final determine as to whether the individual applicant qualifies for the position.

Note that DOL regulations forbid Burgos & Garritson Law, and the foreign worker, from participating in the interview process. Documenting the reasons for rejection of an applicant provides credibility. Credibility counts, especially if a Certifying Officer challenges any of the findings.

Do:

• Make sure everyone that answers the phone and receives mail knows there is a position available, and to whom applicants should be referred.
• Follow up unreturned or unanswered phone calls with letters sent by certified mail with a re-turn receipt requested. If applicants provide an e-mail address, the employer should attempt to contact the applicant via e-mail in addition to telephone calls/certified mail. Make copies of the letters and e-mail messages before mailing and keep the returned receipts.
• Make a record of conversations: who said what to whom and when.
• Contact potentially qualified applicants and set up appointments for interviews quickly (we recommend within the two weeks following publication of the ad to which the applicant is responding).

Do Not:

• Tell an applicant the position is filled or not available.
• Reject “overqualified” applicants if the applicant is willing to accept the job at the wage and conditions offered.
• Reject applicants who are more qualified than the foreign worker.
• Ask any questions regarding marital status, sexual orientation, health, religion, age, etc. Normal employment discrimination rules apply.
• Ask to see proof of permission to work in the United States.
• Reject an applicant for subjective reasons. Generally, only objective reasons can be used.
• Add new requirements for the position after the job offer has been created and advertised.

Examples of valid reasons to reject a U.S. worker include:

• The candidate does not possess the education or work experience required for the position.
• The candidate is not willing to relocate to fill the position.
• The candidate is not willing to accept the job position’s salary.
• The candidate does not possess permanent work authorization in the United States (if the candidate is on a work visa or in the U.S. illegally, the employer can reject the candidate since the goal of the PERM process is to ensure that no U.S. workers are displaced).
• The candidate is no longer interested in the job position (if the employer timely contacted the candidate for an interview and the candidate does not respond, the employer must send a certified letter (with return receipt requested) to the candidate, asking the candidate to contact the employer to schedule an interview. If the candidate still fails to contact the employer, the employer can disqualify the candidate on the basis of disinterest).
• Applicants who fail to respond to certified mail, return-receipt requested.
• Restaurants may require experience in particular cuisine (must be in job offer requirements).
• A business may require experience in specific software applications (must be in job offer requirements).
• A healthcare facility may require experience in a specialized field (must be in job offer requirements).
• An importer may require experience relating to its product (must be in job offer requirements).
• Applicant shows no interest in the job or response to the company where the employer submits telephone bills, letters from applicants, and other evidence.
• Poor references, if documented.
• An applicant who would not work overtime for positions where availability for overtime is a minimum job requirement.
• Although an applicant may be rejected for failure to provide verification of employment history and credentials, an applicant may not be rejected on this basis without the employer first re-questing verification from the applicant and failing to receive it.
• Although requiring specific skills/experience may be valid reasons for rejection, documentation of business necessity and/or that the experience/skills could not be gained in a reasonable peri-od of on-the-job training will likely be required.

Examples of invalid reasons to reject a U.S. worker who applies:

• Employer’s insistence that the experience be in manufacturing men’s suits when job offer listed experience in manufacturing men’s garments, which the U.S. applicant had.
• Employer’s insistence that applicants for a mechanic position know how to use a particular hand tool where the applicant had many years of experience as a mechanic and there was no evidence that applicant could not learn the skill in a reasonable period of on-the-job training.
• Applicant is overqualified.
• Employer suspects that applicant may not remain in the position.
• Employer did not get cooperation of reference(s).

Once all interviews are conducted, you should prepare a recruitment report. The recruitment report must contain a description of the recruitment steps that were undertaken and the results of each. The attorneys at Burgos & Garritson Law will assist in the preparation of the report based on information that you provide. The recruitment report must also contain the number of hires (if any) as well as the number of U.S. workers who were rejected, categorized by the lawful job-related reason for such rejection(s).

The applicants may be rejected if they do not meet any requirement of the job offer. However, if the applicant could acquire skills necessary to perform the duties involved in the position through a reasonable period of on-the-job training, then that U.S. worker is qualified for the position pursuant to DOL regulations. Therefore, the recruitment report should also state whether a reasonable period of employment would be sufficient for an applicant to satisfy a particular job requirement for the position.

The recruitment report will be easier to prepare if each applicant has a separate evaluation form and de-termination. Please find attached a general evaluation form that can be used for each applicant. Many of the items that are contained on the form are a result of many years of administrative court decisions. We suggest modifying the evaluation form to include the requirements listed in the job description and then making copies for the interviews.

1. Recordkeeping

DOL regulations require the employer to keep certain records pertaining to this process, including records of all recruitment steps undertaken in support of the process. Other required records that must be retained include copies of the Form 9089, prevailing wage determination, posted notice, recruitment report, and all résumés or applications that were received from U.S. workers. These records must be kept for five years from the date the application for permanent labor certification was filed. We suggest that the sponsoring employer keep all documentation related to the permanent labor certification application in a folder that is kept with other human resource records but separate from the foreign workers’ employee records.

1. Application

The employer, specifically the person designated to monitor the application process, must create an ac-count with the DOL. Instructions for creating the account are attached. Please be aware that DOL will require subsequent verification that the employer has set up an account. Once the account has been created, the employer must create a sub-account for Burgos & Garritson Law. Instructions for creating the sub-account are also attached.

Burgos & Garritson Law will access the sub-account and submit the permanent labor certification application electronically. The application contains many questions that require information about the sponsoring employer or the foreign worker. Attached to these instructions are questions (or draft forms) that need to be answered or confirmed so that our staff may complete the application with accurate information. Please review the attached questions (or draft forms), make additions or changes, and immediately return the documents to our office.

A DOL certifying officer will review the application and make a determination. The certifying officer can certify that there is a shortage of able, willing, qualified, and available U.S. workers, or decide that an audit of the application is required, or determine that additional supervised recruitment is required, or deny the application.

1. Audit and Supervised Recruitment

Following submission of the PERM Application to DOL, the certifying officer may decide to conduct an audit of the sponsoring employer’s records and documentation. The audit may arise because of a specific concern that the certifying officer has, or as part of a random selection of applications to evaluate the uniformity and quality of the process. In case of an audit, the certifying officer will send the sponsoring employer a notice that lists the documents that must be submitted to the Department of La-bor. These documents might include the recruitment report, copies of advertisements, or copies of ap-applicants’ résumés.

The certifying officer may decide that additional supervised recruitment is required and will inform the employer of what additional recruitment is necessary. Applicants for the position respond directly to the certifying officer who then sends this information to the sponsoring employer. The sponsoring employer will then submit the results of the recruitment efforts to the certifying office in a recruitment report.

Failure to comply with the certifying officer’s request, or inconsistencies in the documentation, may lead to denial of the application and, possibly, a requirement that the sponsoring employer conduct supervised recruitment in future filings of labor certification applications for up to two years.

In the event the sponsoring employer receives an audit or supervised recruitment notice, the sponsoring employer should contact Burgos & Garritson Law immediately. Please note that the additional work involved in complying with an audit request and/or supervised recruitment is not included in our fee agreement. Therefore, the client is billed separately for this additional work based on our hourly rate.

In the event that you have questions pertaining to the foregoing information, please do not hesitate to contact our office.

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