FGI News and Publications

PERM Recruitment After COVID

Our last article in this series on PERM processing in a pandemic

world dealt with layoffs. This article warns of the dangers of

supervised recruitment.

Prior to the enactment of the PERM Rule in 2005, employers had

two paths for alien labor certification — regular processing and

reduction in recruitment (RIR).

Regular processing involved intense scrutiny at the State and

Federal levels and resulted in long delays of up to five years or

more in some busy states like New York and California.

When RIR was introduced employers were able to recruit for US

workers up front, before contacting the U.S. Department of Labor

(DOL), and recruitment reports were transmitted relatively quickly

for review. However, the burden was on the employer each time to

explain why a cursory review by DOL should be enough, and DOL could

grant or deny RIR as a matter of discretion. When DOL chose to deny

RIR, it would instruct employers to conduct a second, often

expensive, advertising campaign and recruitment of US workers under

close supervision. Denial rates were higher for cases entering

regular recruitment rather than the RIR fast track.

To carry the RIR program a step further, DOL introduced PERM, a

new, electronic review of application based on the RIR model. PERM

would eliminate delays but DOL maintained discretionary authority

to select out cases for quality control. These cases would then be

subject to an order of strict oversight — hence the term

‘supervised recruitment.’

To explain the selection process, the Atlanta Processing Center

provided some specific guidance on their criteria, including

applications for jobs in the trades,  employment in public

schools,  applications requiring degrees but no experience,

resubmission of denied applications, and applications filed by mail

instead of by electronic transmittal. However, the criteria may be

best understood as being based on two central issues:  a

general perception that, despite assertions by employers of

unavailability, qualified workers should be available, or upon a

suspicion that the PERM application does not demonstrate bona fide

efforts to find qualified or trainable US workers.

When supervised recruitment is ordered, employers must conduct

searches for qualified workers using additional, extensive rounds

of advertising in media selected by DOL. Resumes are directed to

the DOL which monitors all communications between employers and US

workers. Deadlines are strictly enforced, and applications must be

completed with mathematical certainty!

As record unemployment is now a reality in the US, supervised

recruitment should become more common and must be viewed as an

obstacle course with special challenges. As mere opinions or

conclusory statements by HR will not suffice, employers must

painstakingly provide substantial documentation for rejection of US

workers who, although not technically qualified, may be trained or

considered qualified based on alternate combinations of education,

training, or experience.

The content of this article is intended to provide a general

guide to the subject matter. Specialist advice should be sought

about your specific circumstances.

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