Navigating the PERM Recruitment Process
One of the key points within the PERM process is the recruitment phase. The recruitment process is an essential step to the PERM process because it tests the labor market to prove there are no authorized and qualified U.S. workers available for the job an employer is trying to hire a foreign national to fill. When it comes to the PERM recruitment process, the U.S. Department of Labor (DOL) sets out certain requirements that must be met to fulfill this step.
Professional or Nonprofessional Occupation
The DOL sets out different recruitment requirements for different occupations. For PERM purposes, DOL splits occupations into two categories: Professional (EB-2 and most EB-3 positions that require a degree) and Nonprofessional. This classification determines the minimum standards for the recruitment process.
For both Professional and Nonprofessional occupations, an employer needs to submit a job order to the State Workforce Authority (SWA) for a period of 30 days.
The employer must also place an advertisement in a newspaper of general circulation on two different Sundays. There is some flexibility given when the job opportunity is located in a rural area lacking a newspaper that publishes a Sunday edition.
The employer must also post an internal job posting (often referred to as a “Notice of Filing”) for a period of 10 consecutive business days. If the position is a union position, the employer must give proper notice to the bargaining representative. Even if the employer’s newspaper advertisements do not list the wage offered, the Notice of Filing must list this information.
If the job being offered is a professional occupation, as is the case for all EB-2 positions and for most EB-3 positions that require a degree, then the employer has three additional recruitment requirements which must be met. These can include advertisements placed with:
- Local and ethnic newspapers, to the extent that they are appropriate for the job opportunity (Note that these may be the same media in which the mandatory Sunday advertisements appear.)
- Job fairs
- Employer’s website
- Job search website other than the employer’s
- On-campus recruiting (usually for positions requiring no experience)
- Trade or professional organizations
- Private employment firms
- An employee referral program, if such a program includes identifiable incentives
- A notice of the job opening at a campus placement office, if the job requires a degree but no experience
- Radio and television advertisements
The employer is allowed to complete one of the three activities within the 30 days prior to filing.
Interviewing Candidates: Willing, Able, and Available
Job ads must be carefully crafted to ensure that they sufficiently meet the minimum requirements of PERM green card filings. After the job has been advertised, the employer must interview U.S. applicants who meet the minimum requirements. Employers are required to cite lawful, job-related reasons for rejecting U.S. applicants.
The recruitment process is designed to show DOL that there are no qualified U.S. workers who are willing, able, and available to perform the job needed by an employer. The employer is essentially proving that they are unable to identify a worker who possesses the necessary education, experience, and skills required for the job.
Though employers do not submit supporting documentation of recruitment when filing the PERM, they should keep a full set of recruitment documentation readily available in the chance of an audit, and for at least five years after the date of filing. DOL reserves the right to audit an application at any time during this five-year period.
If you have questions on the PERM recruitment process, please contact our office to schedule a consultation with one of our attorneys today!