On Oct. 19, 2021, the Department of Justice, Immigrant and Employee Rights Section (IER)  announced a settlement agreement with Facebook to resolve issues regarding Facebook’s practices to recruit for PERM applications. The settlement agreement requires Facebook to pay a significant fine, provide a fund for the settlement of individual claims and modify recruiting practices for PERM cases.
Continue Reading Lessons from the IER settlement with Facebook

In its latest decision, Matter of Select National Inc. (Sept. 19, 2012), the Board of Alien Labor Certification Appeals (BALCA) affirmed the denial of a labor certification by holding that even if a potential U.S. worker applicant did not appear to meet the required amount of experience, the employer had a duty to investigate further where the resume demonstrated a "broad range of experience, education and training." (For a general description of the PERM process, please see our recent post).

Select National Inc., follows two decisions issued earlier in the year, Matter of Goldman Sachs & Co. (June 8, 2012), and Matter of Kennametal, Inc. (March 27, 2012), both affirming denials based on employer’s duty to investigate further.

In Select National Inc., BALCA stated as follows: "We agree with the Employer that (the U.S. applicant) does not appear to meet the minimum requirement of three years’ experience in the job offered. However, even if the applicant did not have the exact experience required, the Employer was under a duty to investigate the applicant further."

In all three cases, BALCA acknowledged that the U.S. applicants did not meet the requirements as specified in the recruitment ads and the PERM application, whether it was the required degree or the specific skill set. However, BALCA reasoned that because all three employers had included a variation of the "magic" Kellogg language ("any suitable combination of education, training or experience is acceptable") in the PERM applications and/or the recruitment ads, the employer had the duty to further investigate the credentials of the U.S. applicants. Furthermore in Kennametal, BALCA reasoned that the employer failed to consider whether some of the applicants could be qualified "after a reasonable period of on-the-job training."

These BALCA cases emphasize both the importance of appropriately drafting the recruitment ads and the PERM application while considering any business necessity for the specified education and experience being sought and the importance of properly conducting and documenting the recruitment process in accordance with the regulations.Continue Reading BALCA Finds Employer’s Duty to Investigate Further The U.S. Applicants’ Qualifications

An application for Labor Certification, known by the acronym PERM (Program Electronic Review Management) is often the first of three steps required by an employer who wishes to sponsor a foreign national employee for permanent resident status. This post will provide some background and general explanation for the PERM process.
Continue Reading What is PERM?