Many U.S. employers choose to hire foreign workers to work long-term for the employer’s company -- that is, to sponsor the worker for U.S. lawful permanent residence or a green card. To do so, the vast majority of employers must complete a process known as "labor certification" or “PERM” before actually direct taking steps to sponsor the foreign worker.
The goal of the PERM process is to demonstrate to the U.S. Department of Labor (DOL) that hiring a foreign worker will not prevent a U.S worker from getting a job. The employer must show that no qualified U.S. workers are available for the position in question. To test the job market for potential U.S. workers, the employer must place several advertisements. If no U.S. workers apply for the position, or those who do apply are not qualified, the employer submits a Form ETA 9089 to the DOL and explains this -- thus opening the door to sponsoring the foreign national.
There are many requirements that U.S. employers must fulfill in connection with the PERM advertisements, as discussed at length in "PERM Labor Certification: Preparation and Application Process."
This article focuses on the employer’s responsibilities in reviewing the resumes received in response to the advertisements. We explain how the employer should go about reviewing and interviewing potential job candidates, and how the employer should document this review and interview process for the DOL.
As a general rule, the employer should interview candidates right after it receives their resumes. There is an implicit requirement that the employer conduct its recruitment in “good faith” -- meaning, among other things, that the employer cannot delay in interviewing a candidate in the hopes that the candidate will find another position in the meantime.
The overarching "good faith" principle in the PERM process requires employers to conduct recruitment and candidate-review efforts as if actually trying to fill an open position. Accordingly, employers may not inform candidates that a PERM process is underway, nor otherwise suggest that no actual job opportunity exists. Recall that the employer need not hire any applicant, but rather must consider all candidates as if there were an opening.
The law requires employers to review resumes so that the employer can honestly confirm that no qualified U.S. workers were interested in the job position. The employer may disqualify applicants only for lawful, job-related reasons. For example, if the candidate does not possess the required education or experience, these are considered lawful, job-related reasons for disqualification. However, if the candidate simply attended the employer’s college rival or indicated in the resume that the candidate is a Cowboys fan whereas the employer is a Redskins fan, these reasons are clearly not related to the job position and cannot be used as the basis for disqualifying a candidate.
Although every PERM case is different, the following are typical lawful and job-related reasons for rejecting a candidate:
Because the employer may reject candidates only for lawful, job-related reasons, when interviewing candidates many employers arm themselves with a checklist of the job requirements. A checklist of qualifications is a simple and easy way to guide an employer during the interview process.
For example, let’s say the employer is a bankruptcy law firm and the job position is Senior Attorney. The position requirements are a law degree from a U.S. law school, bar admission in the state of New York, and five years of experience in practicing bankruptcy law. Before interviewing applicants, the employer could make a checklist similar to the following:
This checklist will help the employer identify which requirements the candidate does not fulfill and will be able to assist the employer in disqualifying candidates.
Additionally, although employers must review all resumes they receive in response to the PERM advertisements, there is a small exception stating that employers are not required to interview all applicants. The law allows employers to not interview only those applicants who are CLEARLY not qualified for the position.
For example, let’s say the employer is a children’s hospital advertising for the position of Pediatrician. The position requirements are a medical degree, a fellowship in Pediatrics, and board certification/board eligibility in Pediatrics. The employer receives a resume from a candidate who possesses a Bachelor’s degree in Psychology and no other qualifications. It is abundantly clear from this candidate’s resume alone that the candidate is wholly unqualified for the job position. In such a case, the employer is not required to interview the candidate.
In order to justify the decision to not interview a candidate, the employer must basically be able to show that the gap between the candidate’s qualifications and the job’s requirements are similar to the above example. In deciding not to interview an applicant, it is of the utmost importance that the employer be able to explicitly confirm that the applicant is clearly unqualified for the position.
The law requires that employers retain all PERM documents (copies of advertisements, resumes received, etc.) for a period of five years.
In addition to this retention requirement, employers must document their advertising and recruitment process in a recruitment report. The DOL may ask to see this recruitment report before approving the PERM application, so it is crucial that employers make their report as comprehensive and detailed as possible. Employers prepare the recruitment report after conducting all of the interviews and before submitting the ETA Form 9089 to the DOL.
The recruitment report must outline the PERM advertisements that the employer placed. The report should include the name of the advertising venue and the dates the advertisements ran. For example, a simple listing similar to the following is sufficient:
The recruitment report must also cite each resume the employer received and explain the reasons for rejecting the particular applicant. Additional details such as the date the employer received the resume, the date the employer interviewed the candidate, and the date the employer informed the candidate that he or she was not qualified, are also recommended. A recruitment report will typically follow this format:
Company A received a total of two (2) resumes as a result of the advertisements for the position of Pediatrician. The position of Pediatrician has the following job requirements: (1) a U.S. medical degree or foreign equivalent (2) completion of Pediatrics residency (3) board certification in Pediatrics. These candidates were disqualified for lawful, job-related reasons, as demonstrated below.
Report for Candidate 1
Report for Candidate 2
Note that if you are able to reject a candidate for multiple reasons (such as the candidate not having permanent U.S. work authorization AND not meeting the education requirements) you should include both reasons for rejection on the recruitment report, as they will make the argument for rejecting the candidate more compelling.
For more information on the employer's role in sponsoring an immigrant, see "Employers: Sponsoring Immigrants for Work Visas or Green Cards."