Our last article in this series on PERM processing in a pandemic world dealt with layoffs. This article warns of the dangers of supervised recruitment.
Prior to the enactment of the PERM Rule in 2005, employers had two paths for alien labor certification -- regular processing and reduction in recruitment (RIR).
Regular processing involved intense scrutiny at the State and Federal levels and resulted in long delays of up to five years or more in some busy states like New York and California.
When RIR was introduced employers were able to recruit for US workers up front, before contacting the U.S. Department of Labor (DOL), and recruitment reports were transmitted relatively quickly for review. However, the burden was on the employer each time to explain why a cursory review by DOL should be enough, and DOL could grant or deny RIR as a matter of discretion. When DOL chose to deny RIR, it would instruct employers to conduct a second, often expensive, advertising campaign and recruitment of US workers under close supervision. Denial rates were higher for cases entering regular recruitment rather than the RIR fast track.
To carry the RIR program a step further, DOL introduced PERM, a new, electronic review of application based on the RIR model. PERM would eliminate delays but DOL maintained discretionary authority to select out cases for quality control. These cases would then be subject to an order of strict oversight -- hence the term 'supervised recruitment.'
To explain the selection process, the Atlanta Processing Center provided some specific guidance on their criteria, including applications for jobs in the trades, employment in public schools, applications requiring degrees but no experience, resubmission of denied applications, and applications filed by mail instead of by electronic transmittal. However, the criteria may be best understood as being based on two central issues: a general perception that, despite assertions by employers of unavailability, qualified workers should be available, or upon a suspicion that the PERM application does not demonstrate bona fide efforts to find qualified or trainable US workers.
When supervised recruitment is ordered, employers must conduct searches for qualified workers using additional, extensive rounds of advertising in media selected by DOL. Resumes are directed to the DOL which monitors all communications between employers and US workers. Deadlines are strictly enforced, and applications must be completed with mathematical certainty!
As record unemployment is now a reality in the US, supervised recruitment should become more common and must be viewed as an obstacle course with special challenges. As mere opinions or conclusory statements by HR will not suffice, employers must painstakingly provide substantial documentation for rejection of US workers who, although not technically qualified, may be trained or considered qualified based on alternate combinations of education, training, or experience.
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.