The PERM Process: Lawfully Rejecting U.S. Workers
PERM Labor Certification Process
The EB-2 (with the exception of National Interest Waivers) and EB-3 visa categories require a U.S. employer to obtain a labor certification. This is done through Program Electronic Review Management (PERM). Under PERM regulations, a petitioning employer must first conduct a series of recruitment activities to test the labor market. If there is not a sufficient number of able, qualified and willing applicants, then the employer may submit a PERM labor certification application. This is done either electronically or by mail to the Department of Labor. The employer must also submit documentation demonstrating recruitment activities. If the application is approved (current processing times for PERM applications is about 90 days), the U.S. employer must file an associated immigrant petition with USCIS before the labor certification’s validity period expires (180 days).
Lawfully Rejecting U.S. Workers
During the recruitment phase of the PERM process, employers are generally obligated to consider any and all U.S. applicants. In order to lawfully reject a U.S. worker, an employer must determine: (1) that the U.S. applicant does not meet the positions minimum requirements; and (2) that any deficiencies cannot be remedied through reasonable on-the-job training.
In some circumstances, it may be clear on the face of an applicant’s resume that he or she is not qualified. For example, the specified job requires a college degree, but an applicant’s resume is silent as to that fact. There, it is reasonable for the employer to assume the individual is unqualified. The applicant does not meet a major requirement of the position, and the employer is permitted to reject without conducting any further inquiry. If, however, an applicant’s resume indicates that he or she meets the employer’s stated job requirements, a duty arises. The employer is then obligated to contact the applicant and determine whether he or she is qualified for the position.
To demonstrate, we look at a recent Board of Alien Labor Certification Appeals (BALCA) decision — In the Matter of Sunnyvale School District. There, a U.S. employer filed an Application for Permanent Employment Certification (Form 9089) sponsoring an alien for permanent employment as a Special Education Teacher. Following supervised recruitment efforts by the employer, the Certifying Officer (CO) rejected the application.
The rejection was based on the employer’s failure to contact an applicant who lacked major job requirements. On Form 9080, two specific job requirements were outlined: (1) a Master’s degree in Special Education or related field; and (2) a valid California teaching credential. The applicant in question possessed neither. The CO argued that the nature of the applicant’s resume indicated there was a reasonable possibility that she either possessed the necessary credentials, or could overcome any resulting deficiency through a reasonable period of on-the-job training. The Board disagreed. When an applicant’s resume is silent about major job requirements, such as a Master’s degree, the employer has no duty to contact the individual. The duty to interview an applicant would only arise when he or she broadly meets a position’s major requirements. This obligation is generally triggered when an applicant possesses the requisite degree, but does not necessarily possess knowledge of a particular skill also listed on Form 9089.
If you have questions on the PERM process, please contact our office to schedule a consultation with one of our attorneys today!