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Article: DOL Issues PERM FAQ’s on Recruitment and Layoffs By Rami D. Fakhoury

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  • Article: DOL Issues PERM FAQ’s on Recruitment and Layoffs By Rami D. Fakhoury

    DOL Issues PERM FAQ's on Recruitment and Layoffs

    by


    March 05, 2014

    On February 21, 2014, the U.S. Department of Labor, Employment and Training Agency, issued two new Frequently Asked Questions. The first FAQ’s is entitled “How detailed does the recruitment report have to be with respect to the lawful, job-related reasons U.S. workers were rejected; and the second, which, is titled, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?”

    The PERM regulation at 656.17(g) states, “The employer must prepare a recruitment report signed by the employer or the employer's representative noted in §656.10(b)(2)(ii) describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections. The Certifying Officer, after reviewing the employer's recruitment report, may request the U.S. worker’s resumes or applications, sorted by the reasons the workers were rejected.”

    The recruitment steps undertaken would include advertising in two Sunday papers, a 30-day job order placed with the State Workforce Agency, a Notice of Filing posted at the place of employment, and three additional recruitment efforts if the jobs are listed as professional by DOL. The employer must state the results achieved, including the number of workers hired and the number of U.S. workers rejected for lawful job-related reasons.

    The newly released FAQ states the same information as the regulation:

    The employer must categorize the lawful job-related reasons for rejection of U.S. applicants and provide the number of U.S. applicants rejected in each category. The recruitment report does not have to identify the individual U.S. workers who applied for the job opportunity. NOTE: The Certifying Officer, after reviewing the employer´s recruitment report, may request the U.S. worker’s resumes or applications, sorted by the lawful job related reasons the workers were rejected.

    The only difference is that the FAQ omits the technical reference to participation of representatives in the consideration of U.S. workers. Section 656.10(b)(2)(ii) states, “The employer's representative who interviews or considers U.S. workers for the job offered to the alien must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities such as that offered the alien, but which do not involve labor certifications.”

    This rule is commonly understood to mean that an attorney or agent may not interview or consider U.S. workers. Only the HR persons or other corporate executives may consider the qualifications of job applicants.

    In addition to the regulation and the FAQ, the DOL has created a recruitment template with more expansive requirements which instructs the Employer to include resumes and applications for all U.S. workers who applied for the job opportunity; a report that lists the date the employer contacted the U.S worker; the date the employer interviewed the U.S. workers; the reasons the employer did not interview the U.S. workers; the specific job related reasons the U.S. workers were rejected; how the U.S. worker were informed they did not qualify for the job opportunity; information that documents how the employer contacted the applicant whether by phone (telephone logs), e-mail (dated copy of electronic transmission) and/or by mail (copy of letter sent to applicants along with signed green return receipt cards used in certified mail).

    Rejection letters, while included in the audit request, are not required by the PERM Regulations or even by the agency memoranda or guidance for PERM applications. Industry standards are divided on the wisdom of sending rejection letters. The “pros” believe that polite rejection of workers builds good will for the company; while the “cons” argue the volume of work, fear of being sued, frustration suffered by office staff and the notion that rejected workers could be reconsidered at some time in the future for employment. Since rejection letters are not required, employers may choose not to submit them. However, in the context of a PERM Recruitment Report, rejections letters can be used to frame the issues such as a job applicant’s lack of qualifications or interest for the job opportunity.

    The detailed reporting requirements for U.S. workers described in the FAQ’s are questions used to determine not only whether job applicants were rejected for lawful job-related reasons, but whether the employer engaged in good faith recruitment. Evidence that employers delayed contacting U.S. workers or did not make substantial efforts to contact U.S. workers would prove that the recruitment campaign was not bona fide.

    The Board of Alien Labor Certification Appeals has ruled on all these issues repeatedly prior to the PERM Rule in 2005. Their decisions established that employers must contact U.S. workers promptly, sometimes as quickly as 10-14 days, and must take extraordinary measures to reach job applicants by letter, email, or phone. The actual circumstances are case specific and decided using the totality of circumstances approach.

    While larger employers normally have established procedures to evaluate job applicants in a systematic and objective way, smaller sized employers do not always have these procedures in place and may run afoul of the Department of Labor’s requirement to contact job applicants promptly and strict adherence to prompt and objective recruitment procedures.

    Recruitment Reports should always be prepared and recorded not only in accordance with the regulation and FAQ above but also with the careful record-keeping and details that prove that the Employer’s recruitment campaign was conducted in good faith.

    The second FAQ deals with notification to laid-off U.S. workers. “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?”

    The requirement to notify laid-off U.S. workers of a PERM job opportunity is triggered when the layoff has taken place within the six months prior to filing of the PERM application in the area of intended employment where the position is located and is in an occupation or a related occupation to the PERM occupation. U.S. workers must be given an opportunity to apply and be considered for these positions. The requirement to notify U.S. workers does not apply to workers terminated for cause or for contract workers. The area of intended employment means the geographic area where the offered position will be performed, including normal commuting distance. A related occupation is one where at least 50% of the job duties are the same.

    The new FAQ clarifies how notice may be given to U.S. workers. It states that the Office of Foreign Labor Certification has determined that some employers have merely informed laid off workers that there may be job opportunities in the future, instead of seeking out and inviting the workers to apply.

    The FAQ states, “Where a U.S. worker who is potentially qualified for the job opportunity has been laid off by an employer during the six months preceding the application, the employer must directly notify the worker of the job opportunity and consider the worker if he or she applies for the job. The employer must make a reasonable, good-faith effort to notify each of the potentially qualified laid-off workers that a relevant job opening exists. Notification should be provided by mail, fax, or e-mail, using the last known contact information for each worker. The employer must provide each worker a full description of the specific job opportunity and must invite the worker to apply for the position for which he or she is potentially qualified. At the time a worker is laid off, an employer should secure from the worker appropriate contact information to permit the required notification and consideration. The employer must inform the worker that it is his or her responsibility to apprise the employer of any change in the contact information. The employer may inform the worker that he or she may decline to receive or, upon the worker's later request, discontinue such notification. Where a worker declines to receive such notification, the employer will meet its notification and consideration obligations. Where a worker requests that notification be discontinued, the employer will also be deemed to have satisfied its notification and consideration obligations for the remainder of the six-month period.”

    When there are multiple positions, the employer must notify each laid-off worker not less frequently than once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. The FAQ includes detailed instructions regarding a list of all relevant job openings, to be identified by title and location and with a hyperlink through which workers may obtain detailed descriptions of the job opportunities. and inviting the worker, if interested, to apply for those openings, since a mere one-time notification of possible job availability will not satisfy the employer's regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity.

    The FAQ also imposes special record keeping requirements. An employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

    The new FAQ’s can be viewed at the DOL ETA site:

    http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#recrep1.


    About The Author

    Rami D. Fakhoury is a managing partner of the AV-rated Fakhoury Law Group PC, representing some of the largest global users of US employment-based visas. His practice focuses on business-based employment immigration, with a concentration in the information technology and engineering sectors; among his clientele are health-care workers, investors, academics, and individuals of extraordinary and exceptional ability. In this era of strict enforcement, Mr Fakhoury provides a fully coordinated, expert approach to compliance risk assessments and risk management with a concentration on comprehensive compliance and audit procedures. He and his firm have successfully handled the most difficult legal challenges that confront H, L, E, and O visas and other business immigration employers, including relocation, international taxation and related compliance issues. Mr Fakhoury has distinguished himself as a pioneering innovator throughout his career. He has been counsel for clients at US consulates abroad and is an international lecturer and fellow for the Center for International Legal Studies (CILS); a moderator and leader of the ILW on immigration and consular processing; a policy and compliance liaison for Techserve Alliance on US immigration laws; and a member of the immigration section of the International Bar Association. Mr Fakhoury has also presented and written authoritative articles on immigration issues; the International Law Office's business immigration newsletters; and for an upcoming book entitled Beyond Basics - Dealing with Complicated Business Immigration Issues. This immigration practitioner, cited in the Who's Who Among American Lawyers, International Who's Who in Corporate Immigration Law and and whose firm was chosen as the Global Immigration Firm of the year, is a member of the State Bar of Michigan (international law section); TechAmerica's immigration law committee; the American Immigration Lawyers Association; the International Business Association's immigration law committee. He is a fellow of the Center of International Legal Studies in Salzburg, Austria, a member of the Order of St Ignatius and a global charter member of TiE Global. He is also the Editor of ILW.COM's The Consular Posts Book. To learn more, see: http://www.ilw.com/books/ConsularPosts.shtm.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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