On August 29, 2008, the U.S. Department of Labor (DOL) Employment and Training Administration, Office of Foreign Labor Certification issued a Restatement of PERM Program Guidance Bulletin on the Clarification of Scope of Consideration Rule in 20 CFR 656.10(b)(2). The initial PERM Program Guidance Bulletin was issued on June 13, 2008.
The DOL has a statutory obligation to ensure that no foreign worker is admitted for permanent residence based upon an offer of employment absent a finding that there are no sufficient U.S. workers who are able, willing, qualified, and available to fill the position and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers employed in similar positions (see 8 U.S.C. 1182(a)(5)(A)(i)). The DOL fulfills this obligation by determining the availability of minimally qualified U.S. workers before approving a PERM application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a PERM application. Accordingly, the DOL relies on employers who file PERM applications to recruit and consider U.S. workers in good faith.
The DOL has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to PERM-related recruitment be consistent with the employer’s normal consideration process. Usually the normal consideration process does not involve a role for an attorney or agent, as defined in 20 C.F.R. 656.3, in assessing the ability of applicants to fill the employer's minimum requirements. However, given that the permanent labor certification program imposes recruitment standards on the employer that may differ from the employer’s normal recruitment process, the DOL understands and appreciates the legitimate role attorneys and agents play in the labor certification process and respects the right of employers to consult with their attorney or agent during that process to ensure that they are complying with all applicable legal requirements.
As described in 20 C.F.R. 656.10 (b)(2)(i) and (ii), attorneys, agents, and foreign workers are prohibited from interviewing and considering U.S. workers during the PERM process. The DOL does not, however, prohibit attorneys and agents from performing analyses necessary to counsel their clients on legal questions that may arise with respect to this process. The employer must be the first to review the applications for employment and must determine whether a U.S. applicant’s credentials meet the minimum qualifications for the position unless the attorney or agent is the representative of the employer who normally performs this function for positions, which are not the subject of a PERM application. The initial review of the applications and the final determination of all applications by the employer ensure the DOL that the consideration process is as close to the employer's non-PERM-related hiring process as possible. The employer can seek advice from the attorney and agent throughout the consideration process on legal questions concerning compliance with governing statues, regulations, and policies.
In addition, types of actions prohibited by 20 C.F.R. 656.10(b)(2)(i) and (ii) include:
- Attorneys and agents may not receive resumes and applications directly from the U.S. workers who respond to the employer's recruitment efforts. Attorneys and agents may not conduct any preliminary screening of applications before the employer does, other than routine clerical organizing of résumés, which does not include any assessment of or comments on the qualifications of any applicants, unless the attorney or agent normally performs this function for positions which are not the subject of a PERM application. The attorney or agent may not withhold any résumés or applications from the employer that it receives from U.S. workers.
- Attorneys and agents may not participate in the interviewing of U.S. applicants, unless the attorney or agent normally performs this function for positions that are not the subject of a PERM application.
The DOL may audit applications if they find evidence of improper attorney, agent, or foreign worker involvement in considering U.S. applicants, and it may subsequently require supervised recruitment to determine whether the employer’s recruitment and hiring processes were conducted in good faith and to ensure adherence to all statutory and regulatory requirements. The DOL will scrutinize the processes that the employer used to reach its determination that there are no qualified, available, able and willing U.S. workers, including evaluating whether the employer deviated from its normal processes in evaluating the qualifications of U.S. applicants.