Question: Facebook recently made headlines for failing to engage in good faith recruiting into the PERM labor certification process. What happened and what can other employers do to avoid potential liability?
Responnse: As part of the employment-based green card process, employers must complete a labor market test to prove that there are no qualified U.S. workers for the position held by the immigrant employee. The labor market test involves posting the recruitment for the position on the National Workforce Agency (SWA) website, posting two Sunday advertisements in a newspaper with large circulation, an internal notice application and a choice of three additional advertisements for professional positions such as posting on the employer’s website, a job search website (such as Indeed or Monster), an on-campus employment office, local newspapers or radio announcements, among others.
On October 19, 2021, the US Department of Justice (DOJ) announced a $ 14.25 million settlement that Facebook must pay for its misuse of the Permanent Work Certification Program (PERM). The DOJ found that Facebook “consistently refused to recruit, consider, or hire American workers.” . . for the positions he had reserved for temporary visa holders under the PERM process. The DOJ further stated that “Facebook has used recruiting methods designed to deter American workers from applying for certain positions, for example by requiring that applications be submitted only by mail; refused to consider American workers who applied for the positions; and hired only temporary visa holders.
You should conduct a good faith recruiting, that is, publish the PERM recruiting in the same way as the standard company recruiting processes. You must advertise the PERM position on your website, accept resumes electronically, conduct a timely review of all applicants applying for the position within two weeks, and keep proper documentation for interviews conducted.