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Joel Stewart on PERM Labor Certification

PERM: Supervised Recruitment

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Supervised recruitment is now being used more and more by DOL. Some attorneys report that if no US workers are reported during the normal recruitment, supervised recruitment may be required.

The idea is that with supervised recruitment, the responses of job applicants go to the CO and not to the Employer. This enables the CO to confirm definitively whether there may be a supply of qualified workers.

One problem with supervised recruitment is that there is little time to respond. The PERM Rule requires employers to respond within 30 days after receiving a notice of supervised recruitment with proposed advertisements. Assuming delays in the mail, and keeping in mind that the Employer's response has to be received at DOL no later than the 30th day from the date on the notice, there is little time to prepare an outline of proposed recruitment.

With supervised recruitment, the Employer cannot make any changes from the original job offer, except for the prevailing wage. Employers report that this is unfair, because if the PERM application was filed years earlier, there may be legitimate reasons to make minor changes in the job offer.

Another issue that has arisen is whether the Employer should follow the the PERM Rule when recruiting under Supervised Recruitment or whether the CO may provide recruitment instructions that are substantially different from the PERM Rule. For example, some Employers have been told to recruit in newspapers for more than two Sundays and to include all the relevant information from the 9089 in the Advertisement, such as the complete job description, job requirements and wages, items which are NOT required under the PERM Rule.

According to the regulation, wages are not required to be put in the Advertisements, but must be placed in the Notice of Filing, 9089, 30-day job order and prevailing wage request. An attorney inquired whether the wages should be put in the advertisement as part of Supervised Recruitment, and I responded that the regulation leaves inclusion of wages up to the discretion of the Employer.  I also commented that there is a difference between legal requirements and discretionary actions. Since the inclusion of the wage is discretionary, one may argue, even under supervised recruitment, that it need not be included in the advertisement.

Other Employers have reported that they have received denials in the regular PERM process based on the fact that the CO did not find the job description in the advertisements to contain sufficient detail, either because of a truncated version of the job description or omission of items which are discretionary for the Employer to include. This indicates that the problem is systemic and not just isolated to examples of Supervised Recruitment. In this case, I advised the Attorney to include the wages in the advertisements, unless the attorney could demonstrate that it was against company policy or industry standards to include the wages in the advertisements.

Since there is very little law to guide recruitment procedures under Supervised Recruitment in PERM applications, the best thing is to refer to the PERM Rule itself and general principles of labor certification practice developed over a period of many years by agency pratice and prior BALCA decisions.

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