What's the State of Play Today?
- Low unemployment rates and a shortage of STEM talent continue to drive visa sponsorship of foreign workers by US employers.
- H-1B visas have a ceiling of six years, unless workers are sponsored by their employers for "green cards" early in the process (typically by year four).
- Many employers, particularly in the tech arena, are offering foreign workers "green card" sponsorship as of the start date with the company as a recruitment incentive.
- Companies sponsoring workers for employment-based green cards are required to show as part of the application process that they couldn't find any qualified American workers to fill the job, a job market testing program known as "PERM" sponsorship.
- A major technology company agreed on October 19, 2021 to pay a financial penalty of up to $14.25 million, which includes $4.75 million to the US government and up to $9.5 million to eligible victims of alleged discrimination.
- The government's suit claimed that the company had illegally reserved jobs for foreign workers it was sponsoring for permanent residence instead of searching for and considering available US workers.
- The Department of Justice complaint alleged that the company improperly deviated from normal recruiting standards by requiring applications for PERM-sponsored roles to be mailed to the company rather than, as was the standard practice for general recruiting, submitted online.
- The complaint further alleged that the company did not post these positions on its careers website, as was its standard practice for general recruiting, which appeared to result in very low numbers of US worker applications for the PERM roles.
- The Department of Labor (DOL) also executed a settlement with the company based on its audit of certain of the company's pending PERM applications, in which the company agreed to engage in additional notice and recruitment for US workers and as a result of which the company will face ongoing audits by DOL.
- As part of the settlements, the government will monitor the company's PERM program for the next three years, and DOL will conduct additional audits of the company's PERM filings.
How is the Government Likely To Enforce Requirements of PERM Sponsorship in Light of this Settlement?
Employers seeking to sponsor foreign workers for permanent residency in the United States must engage in a process to test the US labor market by recruiting to determine if there are any able, willing, available and qualified US workers for the position to be offered to the foreign national. A sponsoring employer must file an attestation with the DOL on Form ETA 9089, Application for Permanent Employment Certification, confirming that the employer engaged in all recruitment steps required by DOL for the position. The employer is also required to offer at least the prevailing wage for the position, as determined by the DOL, based on the job requirements and location of employment.
The recruitment steps include two mandatory requirements: placing a job order for 30 days with the state workforce agency and placing two Sunday advertisements with the newspaper of general circulation in the area of intended employment. The employer must also post an internal notice of filing of the PERM application. In addition, for professional positions (i.e., positions for which a university bachelor's or advanced degree is required), the employer must engage in three additional steps, of the employer's choice, from the following list of ten options:
- Job fair,
- Employer's website,
- Job search website other than the employer's,
- On-campus recruiting,
- Trade or professional organization,
- Private employment firm,
- Employee referral program with incentives,
- Campus placement office,
- Local or ethnic newspaper, and
- Radio or television advertisement.
While the DOL regulations leave the "3 of 10" selection within the employer's discretion, the complaints at issue specifically alleged that the company's failure to accept applications for PERM-related positions on its careers website, in the same manner as electronic applications that are accepted for other roles posted on its careers website, "departed from its standard recruiting and hiring processes and instead followed different procedures designed to favor the temporary visa holder and deter U.S. workers."
The settlements mandate that the company now refine its PERM recruiting practices by:
- opening online requisition numbers for all PERM roles on its careers website,
- posting all PERM roles on the careers website in the same manner as other roles are posted and without referencing such roles are related to any PERM process,
- accepting electronic submissions through its careers website,
- entering all candidate applications submitted for PERM positions into its electronic recruiting database (which includes multi-field automated search functionality), and
- ensuring online functionality to allow PERM job applicants to apply electronically through state workforce agency websites (where such functionality is available).
The settlements lay out a new blueprint for how employers need to operate their PERM programs. While DOL regulations do not require placement of PERM ads on a company's careers website, or otherwise mandate particular recruiting vehicles among the ten options, the more the company deviates from its standard recruiting processes, the more vulnerable it is to scrutiny and, potentially, penalties.
In this Environment of High-Need and High-Enforcement, What Should US Employers with Legitimate Needs for Sponsorship Do?
Employers seeking to mitigate risk in the PERM area will need to vet whether their programs have any of the indicia of problems that the technology company faced. An audit that assesses the following key factors will permit employers to take corrective actions early, or, if all is in good stead, to document the strength of their PERM compliance program.
In this regard, we have identified the top ten issues to validate:
- Are PERM role requisitions opened, listed and posted on the company's careers website in the same manner as other, non-PERM job postings?
- Are applicants for PERM positions given the option to submit applications electronically in the same manner as other, non-PERM job openings?
- Are candidate applications for PERM positions incorporated into and searchable in the company's recruiting database and clearly mapped to the requisition number for the open position?
- Are regularly used recruiting vehicles, such as an external job search engines, also used for PERM jobs, and has the company avoided using recruiting vehicles for PERM roles that are never (or rarely) used for other similar positions?
- Are PERM ad texts aligned to the company's more general roles, while incorporating only minimum and special requirements allowed by DOL regulations?
- Do PERM recruiting records clearly document the type of screening that was conducted of US worker applications, and if so, does the screening incorporate a multi-layered review process and include telephonic or in-person interviews similar to how the company screens workers in real time for non-PERM cases?
- Is the volume of applications for PERM positions similar to the volume of applications for similar, non-PERM positions?
- Has the company notified any laid-off US workers of PERM job openings, in compliance with DOL guidelines for notification in the case of lay-offs?
- Has the company received complaints, either through internal sources or from government bodies such as the Immigrant & Employee Rights Section of DOJ, regarding its PERM practices or other actions favoring foreign workers?
- Does the company regularly train its recruiters and other hiring managers on anti-discrimination provisions of the US immigration laws and PERM recruiting requirements?
Employers that vet and mitigate errors-including by carefully utilizing and reviewing available data analytics-will be in a stronger position to defend challenges that are likely to arise in the wake of this settlement. Findings of an audit are likely to reveal opportunities for improvement, mitigation, or remediation. Designation of a leadership group within the company responsible for oversight and monitoring of PERM recruitment, where the leadership group receives regular compliance training from outside counsel, is an important element of a refreshed program. Similarly, development of a policy addressing when PERM sponsorship will be offered, and documenting the way in which the company will conduct PERM recruitment, is essential.
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