Employers that seek labour certification to employ foreign workers must prove that they have not found suitable US workers who are qualified, willing, able and available for employment.

The law has devised a method to search for employees using familiar forms of advertising. For most jobs, workers may be found through:

  • the state workforce agencies, which maintain databanks of local workers who may be looking for the exact job offered by an employer;
  • adverts placed in two Sunday newspapers; and
  • notices posted at the employer's place of business or through in-house media.

For professional positions – defined by a list of occupations maintained by the Department of Labour – three additional forms of recruitment are necessary.

When workers appear, they must file applications according to the instructions of the employer. This may be by sending a résumé by post, email, fax or by applying on the employer's website.

Difficulties arise about how to differentiate between job referrals and job applicants. Referrals are persons whose names may be matched on state job service sites, or whose names may appear on lists of potentially available workers, while applicants are persons who step forward to apply for job opportunities in response to advertisements with instructions provided by employers.

In the Programme Electronic Review Management (PERM) process, workers may be referred to employers whether they are authorised to work or not. This arises from the fact that the verification of work authorisation is not necessarily included in the dossiers of the state workforce agencies or other sources of recruitment.

A government programme called E-Verify – which is intended to maintain work authorisation status for everyone in the United States – is controversial because it does not meet the stated objective to provide safe and reliable information about all job applicants. E-Verify is available in some, but not all states, but even in those states where it is in place, workers are only verified if they appear personally at the agency. Those who apply online are not verified at all.

Even if workers are verified according to E-Verify, they may not meet the definition of US workers as defined in the PERM labour certification programme. Since PERM is a programme to find permanent, full-time employees, US workers are limited to persons with permanent, full-time work authorisation. Specifically, these can only be:

  • US citizens;
  • permanent resident aliens;
  • US nationals;
  • asylees; and
  • refugees and certain foreigners who may have qualified for amnesty under the Immigration Reform and Control Act 1986.

Employers are usually reticent to ask workers directly if they have permanent employment authorisation, because under E-Verify and employer-based verification using Form I-9, employers cannot discriminate between workers who have temporary and permanent work authorisation. The same agency that requires detailed verification of each worker also prohibits misuse of the system to prejudice individuals because of race, religion and national origin.

The Department of Labour often denies PERM applications after issuing a determination that the employer failed to explain why the US workers who applied were lawfully rejected. The denials are fair in those instances when the workers were indeed US workers as defined in the PERM rule, but not fair when the workers were persons with temporary work visas or even with no work authorisation at all.

Little attention has been given to this discrepancy in the PERM rule. Large employers often use other techniques to ferret out persons who are not defined by PERM as US workers. One method is to place special language in the advertisement about whether job applicants need sponsorship. This only identifies persons who answer affirmatively because they would like the employer to sponsor them for permanent residency status and, therefore, to work full-time and permanently in the United States.

According to US Citizen and Immigration Services policy, employers fear asking workers to prove their work-authorised status – whether temporary or permanent – until after they have been hired and have reported to work. This sometimes leads to the embarrassing situation where workers must be terminated during the first day of employment when it is discovered that they are not properly documented.

The work authorisation verification programme was created in 1986. Before the programme was introduced, anyone could work as a natural right, including persons with an unlawful status. However, recently the issue of documentation and the right to work has commanded front-page attention. In a nation of immigrants, the government struggles to determine which persons should be permitted to remain and which persons should be returned to their home country – even as local labour shortages exist in many sectors of the economy and across the country.

For further information on this topic please contact Joel Stewart at Fakhoury Law Group PC by telephone (+1 248 643 4900) or email ([email protected]). The Fakhoury Law Group PC website can be accessed at www.employmentimmigration.com.