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Recruiting Protocols and ''Good Faith'' Recruiting in PERM Labor Certification Applications

Applications for labor certification under the U.S. Department of Labor’s PERM program require employers to engage in a series of good faith recruiting steps. Below are some suggestions about how employers should handle responses received from job applicants.

Steps that Can Cause An Application To Be Denied

Here are some "don’ts" that can cause an application to be denied due to a Department of Labor (DOL) finding that the employer is not acting in good faith:

  • Advising an applicant that the position is not really open because there is an existing company employee already in the job. Employers must treat the position advertised as fully open even if it is currently filled by an employee holding temporary visa status (such as H-1B, L-1B);
  • Allowing the sponsored foreign national employee to be involved in the recruiting and applicant assessment process, including but not limited to, reviewing and critiquing the resumes of job applicants;
  • Following a course of action different from the normal course of action in terms of evaluating and handling applicants. Resumes should be screened and any interviews should be conducted by the company personnel – whether human resources, recruiters or line managers, or a combination thereof – that normally would do this; or
  • Discarding resumes of job applicants. The employer in a PERM case must retain all resumes and provide copies of them to us, even from applicants who are not qualified.

Employers must consider all applicants in a timely manner. The DOL requires employers to exhibit good faith in recruiting efforts. Good faith means various things depending on the nature of the recruiting undertaken. Nevertheless, timeliness is an important ingredient. Employers who delay reviewing applicants' resumes or who are slow to respond to U.S. worker applicants risk having their applications denied. Therefore, please quickly review any resumes you receive (from any source) to determine whether or not the applicant possesses some, all, or none of the qualifications specified. Doing this at least once a week per the below procedures is essential.

How to Screen the Resumes Per DOL's Good Faith Guidelines

It is critical that the company be able to identify those candidates who require follow-up attention and that this be done as soon as the resumes are received. The company might need to speak by telephone with some or all applicants who appear to meet many of the job’s requirements. In some cases, the applicants might need to be invited in for an interview. Only applicants who (i) appear qualified or (ii) whose resumes suggest that the employer should inquire further will merit particularized attention. Those candidates who clearly lack the qualifications required for the advertised job will not need to be contacted by phone nor will they need to be interviewed.

DOL's focus is on the "hard" requirements of the skill set elements relating to education and experience, and not on "soft" requirements such as personality, ability to work as a team, or the strength of references (things that are quite important to virtually any employer). Reliance on soft factors to reject a U.S. worker may result in DOL scrutiny in the event of an audit by DOL.

Please also note that employers must consider as qualified any U.S. worker who can acquire the skills necessary to perform the job during a reasonable period of on-the-job training.

Submitting Resumes and Applicant Grid To Us

We have included a grid that should make it easy for you, the reviewer, to promptly review the incoming resumes on a weekly basis and, once a week, write "Y" (for yes), "N" for no, and "?" (for not certain) in each column of the chart with regard to each required qualification as stated in the skill set for the advertised position. Each week, after you complete the chart with these answers for each applicant whose resume arrived that week, please fax or scan/email the chart to the paralegal who is the point person on your case. Please also fax or scan/email to us the resumes associated with the chart. We will review everything and will consult with you about whether you should place calls to any applicants for a phone screen (if that is your practice) or for an in-person interview.

The decision about who should be interviewed and/or hired is solely the employer’s, and our role as lawyers is to help the employer to ensure it understands and follows DOL regulations.

Conducting Interviews

It is important to log the date and time of all attempts to reach candidates. If you are not successful in reaching a candidate, promptly notify us and provide us with the notes from your attempted contacts so we can assist you in determining if a certified mail/return receipt letter should be sent.

In general, if there are a majority of "yes" and "?" answers and only one or two "Ns", it may be necessary to phone screen the applicants. During an interview it is important to take good notes regarding statements made by the applicant which establish that the applicant either meets or lacks the qualifications required by your job’s skill set.

If the interview yields a U.S. worker who meets your requirements and is interested in your job on the stated terms, you could elect to hire the worker (but you are not required to terminate the foreign national as a consequence). Hiring the U.S. worker however will not change the fact that you will have located a qualified and willing U.S. worker. In this case, you would not be able to file a PERM application because filing such an application equals a representation to DOL that you were unable to locate any qualified, interested, and available U.S. workers. You may initiate a new recruiting process at a later time if you elect to.

If your recruiting efforts yield no qualified U.S. workers, we will assist you to prepare a recruiting summary that, in DOL's words;

    …describes the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The [DOL] Certifying Officer, after reviewing the report, may request the U.S. workers' resumes or applications, sorted by the reasons the workers were rejected.

The recruiting report must be signed by the employer's representative who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered to the foreign national, but which do not involve labor certification. PERM applications are filed under penalty of perjury so it is important that the employers be comfortable that all representations made to DOL are backed up by facts and that the recruiting summary adequately summarizes all representations. The recruiting file must be in place before the PERM application is filed with DOL because in the event of an audit the employer must be ready to send all requested evidence to DOL within 30 days.

Contacting Any Laid off Workers in the Same or Similar Occupation

DOL’s PERM rules also require the employer to contact and consider all company workers who have been laid off in a same or similar occupation in the area of intended employment. If this occurs, please let us know and we will send you further instructions.


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