Too often I read BALCA (The Department of Labor’s (DOL) administrative court) decisions and see PERM denials based on an employer’s mistakes during the PERM process. There are numerous possible failures along the PERM road that could lead to a denial. I could blog all day on mistakes made by attorneys during the PERM process. But there are things employers routinely do that can lead to PERM denial that can be avoided, which I helpfully call the Seven Deadly (PERM) Sins.
Sin 1: Failure to review all resumes within 14 days of receipt. One of the most often performed “sins” is the failure by an employer to react to resumes received as a result of PERM recruitment. An employer must review every resume it receives to ascertain whether the candidate may be qualified for the position, and contact potentially qualified applicants within 14 days. It is a big no-no to sit on the resumes. According to the DOL, failure to be responsive will chill the recruitment process and discriminate against potential U.S. workers.
Sin 2: Failure to consider candidates that have most (but not all) of the special requirements. A good attorney has guided the company to express its minimum requirements for a position in an objective manner that permits an initial determination of whether the candidate is qualified by looking at the face of the resume. If a candidate clearly does not meet the requirements for the position on the face of the resume, the company does not need to interview the individual. However, if the candidate is only “missing” a few of the requirements in his or her background as reflected on the resume, the safest bet is to interview the applicant. Resumes do not always tell the whole story and just because something is not on the resume does not mean that the candidate does not hold the credential. Better to take the extra step of an interview to document a failure to hold all of the special requirements for the position.
Sin 3: Failure to consider candidates who do not meet the minimum requirements but who hold significant experience. This can seem nonsensical – what do you mean I have to consider candidates that fail to meet the minimum requirements for the position?! What is not widely known is the DOL’s recent position that when faced with an experienced candidate the company needs to consider whether it would be possible to train the candidate to perform the job within a reasonable period of training. The DOL can challenge the idea that, for example, someone with 20 years of experience in the IT industry but who does not have required experience with SQL, could not learn that skill within a reasonable period of time. An interview is imperative for individuals holding significant experience, no matter how many requirements are not met on the face of the resume.
Sin 4: Failure to document efforts to contact an applicant. Once an employer has carefully determined that an interview is warranted, the employer should be sure to document its attempts to reach the candidate. It is advisable to maintain a spreadsheet of contact efforts, recording the day, time, and method of contact.
Sin 5: Failure to take reasonable steps to contact an applicant. It is reasonable to rely initially on email to contact a candidate in today’s world (even for a second attempt of contact), but if the candidate is not responsive, attempts cannot stop there. Different methods of contact must be used. BALCA has consistently held that a letter sent to the candidate by certified mail, return receipt requested, is a valid method of contact. In our practice, we suggest utilizing a certified letter if two email attempts are unsuccessful. While a company can attempt contact by telephone, it is difficult to document. Unlike an email or certified letter, there is no written documentation other than telephone records.
Sin 6: Failure to post the job opportunity on the company’s website in a manner that meets the regulations. Not all employers have a website or utilize it as part of their recruitment efforts, but for those that do (it is often used since it is free), it is important that all of the PERM requirements are met when posting the job online. While the Internet on-line posting does not need to include all of the job duties and every position requirement, it must include enough information to apprise a U.S. worker of the job opportunity. In our practice, we advise employers to post the complete language of the job along with all of the requirements. Either way, it is important that the online posting on the company’s website is not contradictory to the rest of the recruitment effort. This is where employers often fall down. For example, the employer will post a salary that differs from that used in the recruitment. Or, the employer lists the number of required years of experience as a range, where the range is below that being required. If utilizing the assistance of an attorney – do not change his/her proposed text; or at least ask questions before you do so. The posting is probably purposely drafted in a manner that comports with the regulations.
Sin 7: Failure to respond appropriately to the question “Is this a job for a labor certification?” Sometimes during an interview, or even as part of the pre-interview contacts, a candidate will specifically ask if the position is being posted as part of a labor certification or green card case. Employers can become flustered, and tell the candidate that it is! The answer is NOT yes! Answering yes will stop the PERM process in its tracks. While the logic is difficult to understand, there are two jobs: the temporary job currently being held by the foreign national employee; and the permanent job offer which cannot be filled until there is approval to do so. Recruitment efforts go towards meeting the various hoops necessary to obtain an approved immigrant visa petition where the U.S. Citizenship and Immigration Services grant “permission” to hire the foreign national permanently. It is perfectly appropriate for an employer to answer something like “We are looking to fill a permanent position” in answer to such a question.
While there are many possible moments in a PERM case where it can go wrong, it is important as an employer to contribute to a successful effort. By avoiding the Seven Deadly (PERM) Sins, an employer can go a long way to ensure an ultimate PERM approval!
Posted by: Sarah Duckham, Senior Attorney