Wednesday 20 March 2024

The fundamental basis of the full PERM process is to establish that a foreign worker will not displace a US worker for the position being offered.  The PERM process has three distinctive phases.  This article will focus on the second step: good faith Recruitment, which is the process by which an employer is required to conduct a good faith effort to test the US Job Market by placing advertisements for the PERM position and certify that no able, willing, and qualified US worker is available.

Regulations state that an employer must place 3 specific types of advertisements – also known as mandatory PERM recruitment:

• Job Order with the state’s workforce agency;
• 2 Sunday Ads in a newspaper of general circulation appropriate to the employment; and
• Notice of Filing – which is to inform other employees that a labor certification will be filed.

In addition to the mandatory recruitment, employers are required to provide an additional 3 of the 10 other ways of recruitment:

• Company’s website
• Job search website
• Local or ethnic newspaper
• Radio and/or TV advertisement
• Employee referral program
• Job fair
• On-campus recruiting at a local college
• Campus placement office of a local college
• Trade/professional organization
• Private employment firm

In the case between the Department of Justice (DOJ) and Apple, Inc. (Apple), the DOJ claimed that Apple violated anti-discriminatory provisions of the Immigration and Nationality Act (INA) whereby Apple engaged in a pattern of discrimination during their recruitment efforts through the PERM.  DOJ claimed that Apple used less effective recruitment practices and deterred potential qualified US applicants from applying to position(s) that Apple preferred for their foreign workers.  Specifically, 1) Apple did not advertise the PERM positions on their external job website, although it was standard practice; 2) it required PERM applicants to submit paper applications although the company allowed electronic applications for all other positions.  The DOJ stated that these less effective procedures deterred and limited the scope of potential qualified U.S. applicants. Apple settled for $25M.

The settlement signals a shift in enforcement, urging companies to align their PERM processes accordingly based on these new trends. The case suggested no indication that employees with approved PERM labor certifications will be impacted by the shift in government enforcement. However, pending PERM applications could potentially be affected through audited cases.

Get in touch

Contact Laura Devine Attorneys to learn more about the PERM process or enquiries@lauradevine.com.