How to Hold a PERM-Compliant Employment Interview With U.S. Job Candidates

How to conduct a legally compliant job interview with someone you might be hoping to have to reject in favor of the foreign applicant you hope to hire.

By , J.D.

One of the final stages in the lengthy Program Electronic Review Management (PERM) process that you as an employer must complete before sponsoring a person for permanent residency in the U.S. is interviewing other potentially qualified candidates for that person's job. (As you probably know, the law requires that you conduct recruitment, and that first priority in hiring goes to available, qualified, and willing U.S. citizen or U.S. lawful permanent resident workers.)

Hopefully, when you drew up the set of minimum requirements for the job, they were sufficient to eliminate all U.S. applicants who are not really qualified for the job. You might have been able to eliminate some of these candidates simply by reviewing their resumes or other application materials.

Nonetheless, you may, in accordance with U.S. immigration law, need to interview other applicants to determine whether they truly are available, qualified, and willing to fill the position. You might discover deficiencies in these applicants through the interview process, such that you may properly eliminate them and get the foreign worker all the way through the PERM process.

This article provides guidance and advice on how to conduct the interview of possibly qualified U.S. workers so that you remain in compliance with PERM requirements.

Who Should Conduct the Job Interviews

Ideally, the person conducting the interview on behalf of the employer would be the immediate supervisor for the open position, or another person who is familiar with the job's duties and the experience and education necessary to accomplish those duties. This familiarity is especially important when the position involves complex technologies or methodologies, since only an interviewer with such expertise will be able to adequately document precisely why an applicant does or does not qualify.

The closer you can stay to your company's normal interview practices, the better. Don't crowd the interview room with a lot of higher-ups who would never be present in a non-PERM case. One person who should not be anywhere near the interview is the foreign worker, if you are already employing him or her in the position being interviewed for (perhaps on an H-1B or other temporary visa). The same goes for attorneys.

It's also not a good idea to bring in an outsider (such as a recruiter) to conduct the interview, no matter how much you value your supervisors' time. These outside agents are unlikely to have sufficient knowledge of the position and its requirements to conduct effective questioning about the applicant's qualifications.

If you absolutely must use someone other than an immediate supervisor or technically competent person as the interviewer, get input from that person or persons before the interview as to the questions that should be asked. Then impress on the actual interviewer the importance of using those questions to elicit the necessary information from the applicant.

What to Say, and What Not to Say During the Job Interviews

It is often the case that the employer has no intention of hiring anyone interviewed as part of the PERM process, but by no means should the interviewer say or imply anything to that effect. Questioning and discussion must proceed as if there is a real job opening.

Likewise, the interviewer should not attempt in any way to discourage the applicant from pursuing the job, or give an impression of negativity or hostility to the applicant's chances of being hired.

If the interviewer is concerned about how long the applicant might stay in the job, the interviewer can attempt to elicit a reasonable commitment, but nothing long-term. Rejection on that basis is not legally permissible.

It's okay to tell the applicant that the salary for the position is set and not open to negotiation. The interviewer can also say that the hiring decision will not be made until a date in the future, but not so far in the future that the applicant would be discouraged from waiting for an answer. Any date within the PERM recruitment period would be permissible.

The interviewer should keep requests for personal references and other documents within the bounds of what the employer normally requests in job interviews. For example, the company might routinely ask applicants for evidence of a university degree, but if it rarely or never asks for transcripts, the interviewer should not impose this burden in the PERM case.

Evaluation of Special Job Requirements

If your company has special requirements for the position, such as the person's ability to speak a foreign language or knowledge of particular software, you need to be careful before administering any proficiency test as part of the interview. Do so only if your labor certification application clearly indicated that such a test would be given.

Don't implement the test for the PERM interviews only; it should be something that's part of your normal interview process when the position requires the special skill. As such, the test should have been given to the foreign employee. (Giving a language test to a native speaker of the language might not be legally necessary, however.)

When judging the results of the test, don't use anyone in-house, as this creates the appearance of possible bias.

If, instead of a test, you want to ask for references to validate the applicant's knowledge, you may do so, and reject any applicant who cannot provide them. You should take the same precautions as with proficiency tests, however: Announce in the labor certification application that references or documentation will be required, and make sure the foreign employee was required to give you the same thing.

Creating a Record of the Job Interview

When you create the written record of your recruitment efforts, it is important that you document what happened during the interview process. This will be important if questions arise as the PERM application is reviewed. Create records during and right after the interview; don't wait for memories to fade. The interviewer should take thorough notes to document each applicant's responses to the questions.

If you determine after the interview that an applicant is not qualified or if there is some other lawful, job-related reason for not hiring the applicant, you are not legally required to send the applicant a written rejection notice. You may do so as a courtesy, however.

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