PERM: Good Faith Recruitment

The PERM labor certification is the first in a three-step process in the majority of employment-based green card cases. A key component of the PERM process is the labor market test, where the employer must demonstrate via a regimented recruitment process that there is no qualified U.S worker willing to fill the position. During this labor market testing period, the employer must conduct good-faith recruitment. Since good-faith recruitment is not specifically defined in the law or regulations, we look to adjudication trends and analysis to understand the U.S. Department of Labor (DOL) reasoning. Our primary source to determine the best practices for good-faith recruitment come from decisions of the Board of Alien Labor Certification Appeals (BALCA).

Good-Faith Recruitment Analysis

The regulations require employers to ensure the job opportunity is open to any qualified U.S. worker and that they only reject U.S. workers for lawful job-related reasons. Good-faith actions by the sponsoring employer during the labor market test is implicit to ensure the purpose of the program is not circumvented. It is important for employers to understand that what the DOL requires typically is more rigid than an employer’s normal hiring practices. The DOL considers actions by an employer that indicate a lack of good-faith effort as a basis for denying certification. To avoid such denials, an employer’s efforts must show serious intent to consider all qualified applicants.

Minimal Attempts to Contact and Interview Show Lack of Good Faith

In the PERM process, the employer must act beyond what likely would be considered adequate during routine hiring. A good example of the DOL’s more stringent expectations can be seen with regard the requirements related to making attempts to contact applicants. As early as 1991, BALCA held that calling and leaving a message for an applicant without anything further is not sufficient to meet the good-faith recruitment requirement. Similarly, in one 2008 case, BALCA reviewed the length of a telephone interview, and found that the call lasted for less than one minute, and therefore evidenced a lack of good faith by the employer. Further, in 2013 BALCA confirmed that even though the employer tracked their certified letters to U.S. applicants, it was insufficient because employers have an obligation to try alternative means of contact.

Employers Must Interview Applicants, Unless They Clearly Do Not Qualify

In addition to good-faith contact attempts, employers must be careful with how they review resumes and applications of U.S. applicants to determine whether the applicant must be interviewed for the position. As a general rule, employers must contact all potentially qualified U.S. applicants. If it is unclear based on an applicant’s resume as to whether they meet a specific requirement for the position, such as having the necessary degree, using that as a basis to disqualify the candidate can be a recipe for disaster. As BALCA held in a 1990 case, if the applicant submits a resume with a range of experience or education that raises the possibility the applicant may be qualified, the employer typically has an obligation to inquire further as to whether the applicant meets the minimum requirements for the position.

Conclusion

As with all immigration processes, proper planning requires an understanding of the requirements of the process and the adjudication trends of those processes. This article should help MurthyDotCom readers in their understanding of the concept of good-faith recruitment in the PERM process. Attorneys at the Murthy Law Firm are available to provide information and guidance, as well as representation, in all aspects of matters related to the labor certification process.

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