Department of Justice Action Suggests Employers Need to Adjust How They Recruit Foreign Workers

The PERM Labor Certification Process (PERM) has been used since 2005 by U.S. employers to sponsor foreign national employees for Lawful Permanent Residence, also known as “green cards.” Through the PERM process, employers are required to test the U.S. labor market through a very structured, highly regulated recruitment designed to protect U.S. workers and see if any minimally qualified U.S. workers are available for the position. The employer can only sponsor a foreign national for a green card through the PERM process if no minimally qualified U.S. workers apply for the position. Employers may need to adjust their settled expectations about PERM recruitments in light of a recent lawsuit filed by the Department of Justice (DOJ).

The DOJ in that case stated that similar recruiting efforts should be undertaken for U.S. workers and foreign nationals. In 2020, the DOJ filed a lawsuit against a company alleging that its PERM recruitment process discriminated against U.S. workers. Even though the company had followed all regulatory requirements set by the Department of Labor (DOL), which supervises the green card process, the DOJ posited the company’s recruitment was still discriminatory because the process did not closely resemble the employer’s usual recruiting procedures. DOJ said the company’s recruitment practices for comparable PERM-related and non-PERM-related positions varied significantly. Although the company complied with DOL’s recruitment procedures for the PERM-related positions, the DOJ alleged the company relied on purportedly less effective advertising methods designed to deter U.S. applicants when recruiting for PERM-related positions, and that in doing so they effectively discriminated against U.S. workers. The company decided to settle the case for millions and allow its PERM processes to be subject to additional scrutiny (“supervised recruitment”) from DOL for the next three years.

DOJ appears to be taking a holistic approach when enforcing the PERM program. In addition to ensuring that all regulatory requirements are met, the government is communicating to all U.S. employers that they should align their normal recruiting practices when recruiting for PERM positions. DOJ did not comment on whether the DOL regulations are discriminatory in and of itself.

For the time being, the PERM process remains unchanged; however, PERM-sponsoring employers should consider reviewing their hiring practices for both PERM and regular recruitment to:

• Ensure all positions have associated requisition numbers categorized by job profiles

• Institute centralized application methods so all applicants are invited to submit resumes using same or similar media (i.e., email or electronic submission through careers website)

• Streamline job descriptions across all ad postings

• Maintaining a database of applicants for all positions and allowing internal HR teams to identify, consider, and hire from the larger pool of applicants

• Capture requirements (i.e., educational, years of experience) and benefits offered for each role (e.g., telecommuting or remote work, travel requirements)

• Offer newly opened positions to recently laid off employees

• Provide anti-discrimination training for HR and Talent Acquisition teams

Employers are urged to consult their legal counsel to review the practical application of PERM recruiting regulations on their standard practices to ensure they are fairly considering applicants who apply for employment.