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Easing the Costs and Burdens of PERM Recruitment

August 18, 2014
Stephen Tarnoff

Employers who sponsor employees for Lawful Permanent Residence, better known as Green Cards, quickly become aware of the numerous difficult and daunting obstacles confronting them in the process. Having to comply with a seemingly incomprehensible array of rules and requirements, it is no wonder that employers are often left to question whether it even makes sense to sponsor their foreign national employees for permanent residence.

Particularly burdensome are the DOL requirements mandating that an employer tests the market for U.S. workers who may be interested in and qualified for the position—even if the sponsored employee already works for the employer. The PERM Labor Certification Application, the first step in the green card process, encompasses the recruitment requirements.  The stakes for both employers and employees are high. Even minor errors in recruitment can result in a denial of the application and force the employer to restart a process that can take two years or more.

In addition to the significant time and expense involved in recruitment, employers often have to sift through and review dozens of resumes and contact and interview applicants to determine if they are qualified for and willing to undertake the position being offered.

The recruitment requirements are detailed and cumbersome. Department of Labor regulations require that employers use at least six different methods to inform U.S. workers that the position is available. These include placing print advertisements for the position in two Sunday newspapers of general circulation that are most likely to attract potential applicants, posting the position on a state job board for 30 days  as well as posting the position on a third party Web site such as Monster or Career Builder and a local or ethnic newspaper.

In addition, employers must physically post the position in a conspicuous place at the place of employment for 10 business days, a posting that must include the salary being offered for the position, which cannot be lower than the employee’s current salary.

The employer may choose alternative methods to recruit, such as, electronically posting the position on the company web site, by the company’s employee referral program, placing ads for the position on the radio, at job fairs, or campus placement offices, by engaging private employment firms, or by using trade or professional organizations.

A single error in any of the recruitment methods can result in the denial of the application.  Denials in the past have resulted from advertisements which contained information or requirements which differed in any way from the job description used with the prevailing wage request, the internal position, or in the application itself. Especially problematic are travel requirements, education or experience requirements, and salary information in the advertisements for the position.

Fortunately, there are ways by which employers can ease some of the burdens caused by these recruitment requirements. For example, some law firms will undertake a major portion of the recruitment process for employers –including placing the ads, posting them on the state job board for 30 days and making sure that all the recruitment requirements are handled as expeditiously and accurately as possible. In addition to law firms familiar with the green card process, there are third party marketing firms willing to undertake recruitment measures on behalf of employers.

One thing that cannot be outsourced, however, is reviewing resumes. The DOL emphasizes that a company’s outside lawyers cannot become involved with reviewing resumes nor advise employers on whether particular applicants should be excluded from consideration for a particular position. The DOL believes that is a responsibility left to the employer which is in a better position to determine whether applicants are qualified for the position being offered.

Lawyers at Minsky, McCormick & Hallagan have in many cases assisted employers with the recruitment requirements of the PERM Labor Certification Application process. For more information on how your company can reduce some of its costs and burdens, please contact a lawyer at the firm.

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