Obtaining an approved labor certification, also known as the PERM, from the Department of Labor is the first step in sponsoring a foreign worker for a green card, and often, it is seen as the most important step as it sets the stage for a successful green card process. 

Before a company can sponsor a foreign worker for an open position and obtain the approved labor certification, the company must show that there are no able, willing, qualified, and available U.S. workers to fill the open position. This is done by testing the U.S. labor market through good faith recruitment. Good faith recruitment involves the placement of advertisements in a specified manner and accepting and reviewing any resumes that may be sent in because of these advertisements.

It is important to keep in mind that the Department of Labor has the job of protecting U.S. workers from being displaced or disadvantaged and this is why the agency enacted the PERM process. If after completing the required PERM recruitment efforts, the employer can attest that no able, willing, qualified, and available U.S. workers were found, the employer may file a PERM application on behalf of the foreign worker.

As discussed in this previous article (What Are The Mandatory PERM Recruitment Efforts?) DOL has put into place two mandatory recruitment steps in order to show good faith recruitment: the State Workforce Agency job order and two Sunday newspaper advertisements. These two mandatory recruitment steps must be completed whether the sponsored position is for a professional or a non-professional occupation.

If the sponsored position is for a professional occupation, DOL has placed additional requirements. A professional occupation is defined as an occupation for which a Bachelor’s degree or higher is the usual education requirement. Appendix A of 20 CFR §656 provides an extensive but not exhaustive list of professional occupations which will require this additional recruitment. If the sponsored position is for a professional occupation, the employer must conduct at least three additional recruitment steps. Two of these additional recruitment steps must be completed in the 30 to 180 day window before filing the PERM application, but one of the additional recruitment steps may be completed 30 days prior to filing.

Unlike the mandatory recruitment efforts, the PERM regulations have not specified a time period for how long the additional recruitment steps must run. The only requirement is that recruitment must always be conducted in good faith. The PERM regulations also do not impose specific content requirements for the additional recruitment efforts as they do for the mandatory recruitment efforts. The regulations confirm that DOL did not intend to impose specific content requirements on these advertisements but instead sought to provide flexibility over the content and form. BALCA (the Board of Alien Labor Certification Appeals) has stated that the same “detailed content” is not required in the additional recruitment efforts. Employers are able to advertise the sponsored position much more broadly in the additional recruitment efforts.

Not only does the Department of Labor require employers who are sponsoring a foreign worker for a professional occupation to conduct three additional recruitment activities, DOL specifies that the employer must choose the three additional recruitment activities from a list of ten approved recruitment activities. The employer may not use any other forms of recruitment that are not included in this list provided from DOL. Filing of the PERM application with DOL is an attestation that all the PERM regulations were followed, and therefore, no documentation is required to be submitted at the time of filing. However, employers are required to gather and maintain supporting documentation of their attestations in the event of an audit. In the case of an audit, the supporting documentation will be submitted to the Certifying Officer for review.

1. JOB FAIRS

First on the list for an additional recruitment step is conducting recruitment at a job fair. If using a job fair as one of the additional recruitment efforts, the employer must document the action taken by providing the brochures advertising the job fair and any newspaper advertisements which name the employer as a participant in the job fair. It is best practice to maintain any documentation which demonstrates a logical connection between the recruitment method and the sponsored position.

2. EMPLOYER’S WEBSITE

One of the easiest methods of additional recruitment would be utilizing the employer’s website. This is often one of the most popular recruitment efforts due to its cost-free nature and the ease of access the employer has to their own website. While the PERM regulations do not specifically identify on which part of the employer website the advertisement should be posted, the duty of good faith would allude to the fact that the employer should post the advertisement for the sponsored position where similar jobs are advertised. Also, the advertisement should be posted on pages of the employer’s actual website, not a link that directs to a separate website, such as a job search website. Also, if an employer does not have its own website but is instead using a social media site owned by a third-party such as Facebook or LinkedIn, ads cannot be placed on these social media sites to qualify for an additional recruitment step.

To document the employer’s website was used as an additional recruitment tool, the employer should provide dated copies of the pages from the site that advertise the sponsored position. Best practice dictates that these copies should, at the very least, include proof of the first and the last date of posting and the printed date should be clearly visible. The entirety of the ad should also be clear. If, for some reason, the employer is unable to provide this primary evidence as described in the regulations, it is possible for the employer to submit an affidavit from the official within the employer’s organization who is responsible for the posting of such advertisements to the website, and this affidavit should attest, under penalty of perjury, the posting of the job advertisement. The agency has cautioned, however, that the acceptance of this secondary evidence depends upon the nature of the submission and the presence of other primary documentation.

3. JOB SEARCH WEBSITE OTHER THAN THE EMPLOYER’S WEBSITE

A job search website includes any other website other than the employer’s website. However, the website itself must still be considered a “job search” website so social media sites such as Instagram or Facebook will not be considered appropriate for this additional recruitment step. In order to maintain good faith recruitment as always, employers should be wary of using a job search website which focuses on a specific industry or field if the sponsored position does not align with the industry or field. Just as the regulations state that employers should document use of the company’s website by providing copies of the webpages where the advertisement is posted, the same requirements also apply to the usage of a job search website.

4. ON-CAMPUS RECRUITING

To document recruitment done by participating in on-campus recruiting, the employer can provide copies of the notification issued or posted by the college’s or university’s placement office where the employer is named and the date interviews were conducted is included. BALCA has held that employers may also provide documentation that identifies the employer and the university, along with the general types of positions being offered as long as the specific dates, times, and locations of the on-campus recruitment took place are included.

5.TRADE OR PROFESSIONAL ORGANIZATIONS

If an employer chooses to utilize a trade or professional organization for an additional recruitment campaign, the employer may provide copies of the newsletter or trade journal which contains the advertisement for the sponsored position. To make this recruitment method more accessible to the employer, the Department of Labor has stated the employer may even use the trade or professional organization’s electronic journal. However, it must be noted that recruitment steps are not to be duplicated. If an employer chooses to alternatively post in a professional journal rather than a second Sunday newspaper advertisement for their mandatory recruitment efforts, they cannot try and use the same journal to satisfy one of the three additional recruitment efforts. One recruitment step cannot be used to satisfying two different recruitment steps.

6. PRIVATE EMPLOYMENT FIRMS

Employers may use private employment firms to satisfy an additional step of recruitment. In order to document the use of private employment firms, evidence of the contractual relationship between the employer and the private employment firm should be provided. Documentation of the relationship with the private employment firm for the specific recruitment of the sponsored PERM position should be shown. Best practice would be to also include copies of the advertisements placed by the private employment firm, as well as an explanation of how U.S. workers were informed about the position and where they were directed to apply.

7. EMPLOYEE REFERRAL PROGRAMS WITH INCENTIVES

Another possible method of the additional recruitment step is using an employee referral program with incentives. The employer must be able to establish that not only does the employee referral program exist, but the employers were made aware of the open opportunity. The Department of Labor has specifically stated that the Notice of Filing is not sufficient to make the employees aware of the open opportunity and another posting must be completed. To document the use of an employee referral program with incentives, the employer should provide dated copies of notices or memoranda that advertise the program and specify the incentives offered.

8. CAMPUS PLACEMENT OFFICES

Campus placement offices can be used as an additional recruitment step even if the offered position requires a degree and previous experience as campus placement offices are used not only by current students, but alumni who have experience as well. To document the use of the campus placement office, a copy of the advertisement for the job opportunity provided to the campus placement office should be provided. Unlike on-campus recruiting, which was previously discussed, utilizing a campus placement office does not require an interview to be conducted, but only posting to be made.

9. LOCAL AND ETHNIC NEWSPAPERS

In order to use a local and ethnic newspaper as an additional recruitment step, the local and ethnic newspaper needs to be appropriate for the sponsored job opportunity. As always, the employer should use good faith when determining if a local and ethnic newspaper is the appropriate place for a job posting that will reach the correct audience. For instance, as many local and ethnic newspapers do not post advertisements for professional positions, an employer will find it difficult to demonstrate posting for a professional occupation in said newspaper if it is the only ad of its nature that appears. If an appropriate local and ethnic newspaper is found, providing a copy of the page in the newspaper that contains the advertisement will count as documentation.

10. RADIO AND TELEVISION ADVERTISEMENTS

While radio and television advertisements can be a cost effective method for recruiting as the PERM regulations do not dictate a specific time frame when the advertisement must run, the Department of Labor may call into question an employer’s good faith recruiting if the ad for a professional position is running in the middle of the  night when advertising rates are much cheaper, but potential applicants are less likely to hear them. Best practice would be to run the advertisements at several different times of the day when applicants have a better chance of hearing them. To document the use of a radio or television advertisement, the employer should provide a copy of the advertisement text and written confirmation from the radio or television station which states when the advertisement was aired.

CONCLUSION

Obtaining an approved labor certification from the Department of Labor is a crucial initial step in sponsoring a foreign worker for a green card. Through the PERM process, employers must demonstrate their efforts to test the U.S. labor market for able, willing, qualified, and available U.S. workers before sponsoring a foreign worker, thereby ensuring the protection of American workers from displacement or disadvantage. While mandatory recruitment efforts include steps such as the posting of State Workforce Agency job orders and Sunday newspaper advertisements, additional recruitment steps may be required depending on whether the position is professional or non-professional. The flexibility provided in the PERM regulations allows employers to choose from a variety of recruitment methods and documentation of these efforts is essential for compliance and potential audits. A qualified and experienced immigration team will help employers adhere to PERM regulations and ensure recruitment is conducted in good faith, allowing employers to navigate the PERM process successfully while upholding the integrity of the labor market.

For over 25 years, Reddy Neumann Brown PC. has focused solely on U.S. employment-based immigration, and works with employers to establish best practices when navigating the PERM labor certification process. If you are in need of a U.S. work visa or permanent residency, speak with one of our immigration lawyers. Please contact us online, call our Houston business immigration office directly at 713-953-7787 or schedule a consultation.

By: Jessica Palarca

Jessica Palarca is an attorney in Reddy Neumann Brown’s PERM Labor Certification Department where she assists clients in the beginning stages of the green card process.