This article first appeared on HR.com. View the original article here.
The process of applying for green card sponsorships for foreign workers has become increasingly complex for employers in recent years. This is due in part to even more rigorous enforcement of labor certification regulations and employment anti-discrimination provisions by the Department of Labor (DOL) and the Department of Justice (DOJ).
Recent high-profile lawsuits involving large tech companies and their hiring practices illustrate the importance of transparency and “good faith” efforts in the recruitment process.
For employers, this means that their approach to handling Program Electronic Review Management (PERM) recruitment process requires increased diligence in regulatory compliance, thorough documentation, and proactive planning.
How do employers balance this changing landscape and still complete PERM recruitment successfully? Consider the following best practices:
Adhere to a Recruitment Timetable
Successfully navigating the PERM process hinges on precise timing, especially during the recruitment phase, as DOL regulations are stringent and allow little flexibility with deadlines.
Employers seeking labor certification must confirm that they have conducted a bona fide test through various recruitment methods before filing the PERM application. Once the Prevailing Wage Determination (PWD) is filed and pending with the DOL, it is crucial to have a detailed plan for conducting recruitment. This plan should include whether pay transparency laws apply specifying the types of advertisements to be posted, their timing, and the methods for record-keeping.
Keep in mind that recruitment must start before the PWD expiration date with all recruitment activities occurring at least 30 days, but no more than 180 days, before the PERM filing date.
A well-organized recruitment campaign demands careful planning that involves multiple steps, including advertising across various media and posting job orders, which take at least 30 days to complete. By proactively developing a plan, employers can prevent rushing at the last minute which can lead to errors or missed deadlines, potentially jeopardizing the entire recruitment process. Planning and staying mindful of expiration dates and regulatory timeframes are crucial to ensuring a smooth and successful recruitment phase.
Mirror Regular Recruitment Practices and Uphold “Good Faith” Efforts
DOL regulations require employers to demonstrate “good faith” throughout the PERM process. This issue was a focal point in the DOJ’s recent lawsuits against tech companies. The “good faith” standard” states that, to the extent possible, employers must conduct recruitment for the PERM position as they would for any other domestic hire.
Employers should give particular attention to the application methods for the PERM role. As highlighted in recent DOJ litigations, these methods should mirror the employer’s typical recruitment practices and not require applicants to use alternative or outdated methods that might deter or narrow the pool of qualified candidates. By aligning PERM recruitment standard company practices, employers demonstrate consistency and mitigate the risk of appearing to favor foreign applicants.
Use Caution When Reviewing Applicants
A typical error in PERM recruitment is the delay in reaching out to potentially qualified U.S. applicants, so employers must be vigilant about timelines for reviewing and contacting them. While the regulations do not specify exact timelines, the DOL requires employers to demonstrate “good faith” in reaching out to applicants, which is also highlighted in recent DOJ litigation. “Good faith” efforts entail promptly contacting applicants who may be minimally qualified for the PERM role to avoid deterring their interest or delaying with the intent that they become unavailable. Delays in contacting potentially qualified applicants can be interpreted as a lack of genuine interest in hiring domestically, which may lead to legal action from the DOL and/or DOJ.
Given that regulations do not specify a minimum number of contact attempts, employers should exercise discretion in their outreach efforts. The frequency and timing of these attempts should align with the employer’s standard recruitment practices and demonstrate a “good faith” effort to reach the applicant. It is crucial to thoroughly document all contact attempts, instances of a lack of response, and any confirmations from applicants indicating disinterest in the PERM role.
Do Not Delay in Reaching Out to Potentially Qualified Applicants
A typical error in PERM recruitment is the delay in reaching out to potentially qualified U.S. applicants, so employers must be vigilant about timelines for reviewing and contacting them. While the regulations do not specify exact timelines, the DOL requires employers to demonstrate “good faith” in reaching out to applicants, which is also highlighted in recent DOJ litigation. “Good faith” efforts entail promptly contacting applicants who may be minimally qualified for the PERM role to avoid deterring their interest or delaying with the intent that they become unavailable. Delays in contacting potentially qualified applicants can be interpreted as a lack of genuine interest in hiring domestically, which may lead to legal action from the DOL and/or DOJ.
Given that regulations do not specify a minimum number of contact attempts, employers should exercise discretion in their outreach efforts. The frequency and timing of these attempts should align with the employer’s standard recruitment practices and demonstrate a “good faith” effort to reach the applicant. It is crucial to thoroughly document all contact attempts, instances of a lack of response, and any confirmations from applicants indicating disinterest in the PERM role.
Be Aware of Technology’s Role (and Potential Risks) in Recruitment
In today’s digital age, technology is increasingly crucial, and the PERM process is no exception. Tools like applicant tracking systems and AI-powered solutions can help employers organize resumes and screen applicants, enhancing efficiency and accuracy. However, ambiguity remains about how technology can and should be used during PERM recruitment while staying compliant with DOL guidelines, as regulations do not address the use of advanced technology in applicant vetting.
Before integrating tracking systems and AI-powered technology into PERM processes, employers should be aware of several potential concerns. One major issue is the risk of bias and discrimination, as AI systems can inadvertently perpetuate or amplify existing biases in the data they are trained on, leading to unfair treatment of certain applicant groups. Additionally, the complexity and opacity of AI algorithms can make it difficult to understand decision-making processes, posing challenges for transparency and accountability in recruitment. Furthermore, questions about the accuracy and reliability of AI tools in evaluating candidates remain, as errors or inaccuracies in AI assessments can result in qualified candidates being overlooked.
Data privacy is another major concern, as AI often processes large amounts of personal data, raising questions about how this data collection, storage, and usage. Ensuring compliance with data protection regulations is essential to address these concerns.
Additional guidance is anticipated to establish clearer parameters on the use of advanced technology in the PERM process and to specify the documentation that must be maintained and provided if requested by the DOL.
Today’s professional workforce is global and mobile. Accessing their skills while maintaining compliance with U.S. immigration policies is a major challenge for many organizations. Many organizations leverage the technology, processes, and expertise of a third-party provider to ensure that all runs efficiently and effectively regarding i and non-immigrant petitions, documentation, reporting, and administrative tasks.
Kim Calabro is a Senior Manager, Immigration Services at Integreon. As an immigration attorney with over 11 years of industry experience in U.S. business immigration covering the full spectrum of non-immigrant and immigrant visas, she has held both in-house and law firm roles. Notably, she oversaw the largest PERM program in the U.S.
