Individuals Matched to a Job Order Not “Applicants” for Purposes of PERM

The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations require employers to retain specific documentation to be submitted in response to a potential audit by DOL. One such document is a recruitment report listing all U.S. applicants for the position and providing lawful reasons for their rejection.

On August 25, 2015, the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, issued a decision in Matter of Usmania finding that individuals matched to a Job Order by the Illinois State Workforce Agency (SWA) were not considered applicants for purposes of PERM.

In Usmania, the employer received a PERM denial alleging that its recruitment report had failed to list all U.S. applicants for the job opportunity. The Illinois SWA system had identified a group of candidates whose skills appeared to match the employer’s job requirements. The SWA system allowed the employer to determine if those candidates were suitable. The employer reviewed the list of candidates but determined that they were not qualified. The PERM denial argued that, because the employer reviewed the candidates, they were considered “applicants.”

On appeal, BALCA reversed the PERM denial.  BALCA based its decision on DOL’s Frequently Asked Questions (FAQs) posted by the Office of Foreign Labor Certification (OFLC), which state that the employer is responsible for considering/contacting only those applicants who have affirmatively provided a response as specified by the employer in the job order. The employer in Usmania did not receive any affirmative applications or résumés from the 20 matched candidates.  Because the FAQ did not indicate that the employer was required to reach out and solicit the matched candidates, the individuals in question were not “applicants” for the position in any meaningful way. Therefore, the employer’s recruitment report was not required to identify them.

PERM is an exacting process in which employers bear the burden of proof. Failure to follow the PERM requirements closely may lead to denial, even after successful recruitment efforts have been completed. Therefore, we do not recommend proceeding with a PERM case without the benefit of experienced counsel.

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