PERM Labor Certification Recruitment and the Disqualification of Applicants

The PERM labor certification application is the first stage for most immigrants in an employment-based case for legal permanent residency. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to offer at least the prevailing wage for the position and then conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified, willing, able and available US workers.

The Department of Labor (DOL) requires that the employer be willing to hire a U.S. worker if one is qualified and available, although it will not force the employer to hire such worker if one is located. This requirement is intended to assure that a fair test of the labor market is conducted. Therefore, the employer may not discourage U.S. workers who apply for the job, or tell them that the job is already filled by the foreign national or that recruitment has been undertaken strictly for labor certification purposes. Nor may the foreign national participate in interviewing or evaluating US job applicants, because that participation gives the appearance that a fair test of the labor market is not contemplated.

In the six months prior to filing an application, employers are required to place a job order with the state’s unemployment bank and run two newspaper advertisements in Sunday papers in the area of intended employment in a paper of general circulation most appropriate for the profession. Employers of professionals are also required to conduct three additional types of recruitment from a supplemental list of recruiting methods (e.g. job fairs, employer’s web site, job search website other than the employer’s, on-campus recruiting, newsletters or journals of trade or professional organizations, private employment firms, employee referral program with incentives, campus placement offices, local and ethnic newspapers; and radio and television advertising).

Documentation of recruitment is not to be submitted with the application, but must be maintained in a file that will be available to the DOL in the case of a request by a Certifying Officer (CO) or an audit. The two advertisements as well as the job order must be placed more than 30 days but less than 180 days before filing the application.

Minimally Qualified Applicants

Should no available, able, willing, qualified, available U.S. worker applicants respond to the ads and other recruitment efforts, then the employer files the labor certification application with the DOL. US workers include:

• U.S. citizens and nationals;
• legal permanent residents;
• certain temporary and permanent residents who entered the US before 1982 and were granted adjustment of status;
• special agricultural workers granted adjustment of status; and
• refugees and asylees.

Aliens who are in F-1 status and hold optional practical training (OPT) and H-1B workers are not considered U.S. workers.

In terms of disqualifying US workers, it should be emphasized that the applicant must be able to reasonably perform the job duties. Thus, even if the applicant satisfies the minimum education and experience requirements, or has alternative qualifications equivalent to the minimum requirements, he or she can still be ineligible for the position. Also, an employer company can request references to determine if the applicant is truly qualified for the position. Further, the applicant must be willing to fill the job and all its attendant terms, including the salary. Therefore, if an applicant wishes a higher salary he is not considered a “willing” applicant for the PERM labor certification process and he can be disqualified.

It should be emphasized that the DOL will consider a candidate minimally qualified, even if he does not satisfy the actual minimum requirements, if he could acquire the skills necessary to perform the job in a reasonable period of on-the-job training. Thus, for applicants who do not meet the explicit requirements on the labor certification, the employer should document how each such applicant could not be trained on the job within a reasonable period of time.
In terms of ascertaining whether an applicant is minimally qualified, an employer may disqualify a PERM applicant if there is no reasonable possibility that the applicant meets the employer’s job requirements based on his resume alone. Where the applicant’s resume is silent regarding a major requirement, i.e., a college degree, and the resume omits any relevant experience and no evidence is provided showing requisite training in the job opportunity, then the employer can reject the applicant for a lawful, job-related reason.

Substantially Equivalent Alternative Requirements

When an employer’s alternative requirements are substantially equivalent to the primary requirements and the alien only meets the alternative requirements, the employer must indicate that applicants with any suitable combination of education, training or experience are acceptable. Alternative and primary requirements must be substantially equivalent in terms of whether the applicant can reasonably perform the job duties.

Responding to US Workers Applying for the Position

The employer should respond in a reasonably prompt fashion to any applications from US workers responding to any ads, postings or notices for the PERM position. If attempts to contact the applicant through the phone or e-mail are unsuccessful, then the employer should send a letter via certified mail or mail sent by overnight delivery to the applicant.

Proper Standards of Disqualification

Regarding the interview process and proper standards of disqualification of candidates, as long as the job requirements are within the limits prescribed by the regulations, the rejection of US workers who do not meet all those requirements is lawful and job-related. It is important that employers not to ask illegal questions, that is, questions regarding marital status, gender, sexual orientation, health or handicap, religion, age, ethnicity, race, or citizenship status. Regarding the applicant’s work authorization, the employer should ask only if the applicant has the right to work permanently in the US. Also, the employer should not reject a job applicant for subjective reasons, for example, because it finds the applicant to be unattractive, insufficiently outgoing, or has a personality conflict with the applicant. Moreover, the employer must not add job requirements that were not included in the job advertisement. Furthermore, the employer must not reject U.S. workers whose qualifications exceed the job’s requirements. Finally, the employer must not reject a job applicant because he has requested a higher salary than what is being offered unless the employer has actually made the job offer already.

Also, the employer should ask the following questions of each applicant:

• Does the applicant meet the minimum education, experience and training requirements for the position, or a suitable alternative combination thereof?
• Can the applicant reasonably perform the job duties as listed in the labor certification application?
• Is the applicant willing and able to accept the job offer (salary, relocation, etc.)?
• Do the applicant’s references support a job offer?
• Does the applicant have the right to work permanently in the U.S.?

Regarding the last question, this is the only legal question the employer may ask regarding the applicant’s national origin, citizenship or immigration status and whether that person is a US worker. The employer may not discriminate on the basis of national origin.

Recruitment Report

Employers under PERM will need to prepare a recruiting report that describes recruitment steps undertaken and the result achieved, the number of hires and, if applicable, the number of US workers rejected, categorized by lawful job related reasons for such rejections. The Certifying Officer (CO), after reviewing the employer’s recruitment report, may request the US workers’ resumes or applications, sorted by the reasons the workers were rejected.