United States: Searching For Workers In All The Wrong Places

Employers who seek labor certification to employ foreign workers must prove that they have not found suitable US workers who are qualified, willing, able and/or available. Somewhere in the cosmos, there must be somebody, but US workers are not extraterrestrials to be found somewhere in the far reaches of outer space.

It's not rocket science, either. The law has devised a down-to-earth method to search using familiar forms of advertising. For most jobs, workers may be found through the state workforce agencies, which maintain databanks of local workers who may be looking for the exact job offered by an employer, ads placed in two Sunday newspapers, and notices posted at the employer's place of business or through in-house media. For professional positions (defined by a list of occupations maintained by the Department of Labor), three additional forms of recruitment are necessary.

When workers appear on the horizon, they must file applications according to the instructions of the employer.  This may be by sending resumes by mail, email or fax, or even by applying electronically at the employer's website.

Difficulties arise about how to differentiate between job referrals and job applicants.  Referrals are persons whose names may be matched on state job service sites, or whose names may appear on lists of potentially available workers, while applicants are persons who step forward to apply for job opportunities in response to advertisements with instructions provided by employers.

In the PERM program, workers may be referred to employers whether they are authorized to work or not. This arises from the fact that verification of work authorization is not necessarily included in the dossiers of the State Workforce Agencies or other sources of recruitment.

A government program known is E-Verify, intended to maintain work authorization status for everyone in the United States, is controversial because it does not meet the stated objective to provide safe, reliable information about all job applicants. E-Verify is available in some, but not all, states, but even in those states where it is in place, workers are only E-verified if they appear personally at the agency. Those who apply on-line are not verified at all.

Even if workers are verified according to E-Verify, they may not meet the definition of U.S. workers as defined in the PERM labor certification program.  Since PERM is a program to find permanent, full-time employees, U.S. workers are limited to persons with permanent, full-time work authorization.  Specifically, these can only be American citizens, permanent resident aliens, US Nationals, Asylees, Refugees, and certain foreigners who may have qualified for amnesty under the Immigration Reform and Control Act of 1986.

Employers are usually reticent to ask workers directly if they have permanent employment authorization, because under E-Verify and employer-based verification using Form I-9, employers cannot discriminate against workers who have temporary and permanent work authorization. The same agency that requires detailed verification of each worker also prohibits misuse of the system to prejudice individuals because of race, religion, national origin and so forth.

The Department of Labor often denies PERM applications after issuing a determination that the employer failed to explain why the U.S. workers who applied were lawfully rejected.  The denials are fair in those instances when the workers were indeed U.S. workers as defined in the PERM Rule, but not fair when the workers were persons with temporary work visas or even with no work authorization at all.

Little attention has been given to this discrepancy in the PERM Rule. Large employers often use other techniques to ferret out persons who are not defined by PERM as U.S. workers.  One method is to place special language in the advertisement about whether job applicants need sponsorship.  This only identifies persons who answer affirmatively because they would like the employer to sponsor them for permanent residency status and, therefore, to work full-time and permanently in the U.S.

According to USCIS policy, employers fear asking workers to prove their work authorized status, whether temporary or permanent, until after they have been hired and have reported to work.  This sometimes lead to the embarrassing situation that workers must be terminated during the first day of employment when it is discovered that they are not properly documented.

The work authorization verification program was created in 1986. Prior to that time, anyone could work as a natural right, including persons in unlawful status. In recent years, however, the issue of documentation and the right to work has commanded front page attention. In a nation of immigrants, the country struggles to determine which persons should be permitted to remain and which persons should be removed to the place from whence they came – even as local labor shortages exist in many sectors of the economy and in every part of the country.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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