For PERM Labor Certification Purposes, on What Grounds Can Employer Reject U.S. Job Candidates Based on Resume or Interview?

Before hiring an immigrant worker, U.S. employers must test the market by advertising the job to U.S. workers and hiring anyone who is qualified, willing and able. The employer can't just reject all the U.S. workers who apply without good reason.

When conducting a PERM recruitment, an employer can reject a job applicant for legitimate job-related reasons only. In its decision to reject an applicant, the employer must be mindful of the purpose of the PERM process: to test whether there are able, willing, qualified, and available U.S. workers to do the job.

Anyone who responds to the job advertisement with a resume can be assumed to be willing and available. It may be more difficult to determine, however, whether an applicant is able and qualified for the job on the basis of a resume or after an interview.

Lack of Required Education, Training, Credentials, or Experience

The employer will have carefully crafted the job description and minimum job requirements for its advertisement. Assuming those requirements are appropriate to the job and do not run afoul of the PERM rules, it is perfectly acceptable to reject an applicant on the basis of a resume that clearly indicates the applicant lacks the required education, training, credentials, or experience for the job.

If there is any doubt based on the resume, the employer should conduct an interview before rejecting the applicant.

An important PERM rule to consider here is that an employer cannot reject an applicant for lacking the skills necessary to perform the duties involved in the occupation if the applicant could acquire those skills during a reasonable period of on-the-job training.

Having too much education, training, or experience for the job is never a lawful reason for rejecting an applicant for PERM purposes.

Inability to Perform the Job

An interview may reveal legitimate reasons for rejecting an applicant aside from not being qualified. Poor health is a proper basis for rejection if it would affect job performance or reliability. If an applicant is interviewed and it is discovered that he or she cannot speak English well enough to perform the job, that applicant may be rejected.

The employer must take care in rejecting applicants on the basis of inabilities or disabilities, however, since laws may require reasonable accommodations.

Problems Discovered After Job Application

After an applicant responds to the job advertisement with a resume or other application form, the employer may discover, through statements or actions of the applicant or investigation by the employer, that the applicant is not able, willing, qualified, or available to do the job.

It will not come as a surprise that people exaggerate or mischaracterize their qualifications on a resume, or even lie about them. The employer may have asked applicants to provide references, and if any applicant’s references revealed something disqualifying or were not provided, the applicant could be properly rejected.

The same is true for criminal background checks. Also, it may come to light that the applicant is not really a “U.S. worker,” perhaps because his or her legal permanent resident status has been lost.

If the applicant for any reason does not wish to complete the application process, he or she may be properly rejected.

Improper Bases for Rejecting a U.S. Worker

There are many different ways an employer can improperly reject a job applicant for PERM purposes. Most of them involve rejecting a candidate for failing to comply with a requirement that is not stated in the job advertisement.

Employers must not reject an applicant for failing to meet an “inherent” job requirement or one that seemed obvious to the employer but wasn’t stated expressly. An example would be rejecting a teaching applicant with a below-satisfactory performance evaluation on her most recent student-teaching assignment where nothing in the employer’s stated minimum requirements indicates that an applicant cannot have a negative performance evaluation or a negative reference of any kind.

If a resume is missing any indication that the applicant lacks some major required qualification, the employer may properly reject the applicant. However, if the employer can’t determine from a resume whether an applicant has some other desired qualifications, it cannot ask the applicant to prove those qualifications and then reject the applicant if he or she doesn’t respond.

Applicants who respond to an advertisement with a request for a higher salary than that being offered in the advertisement can’t be rejected for “unwillingness” to accept the job at that point. Instead, the employer must actually determine whether the applicant is otherwise able, willing, qualified, and available to do the job, offer the job, and have the applicant reject it for inadequate salary.

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