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Joel Stewart on PERM Labor Certification

PERM: Supervised Recruitment Gone Awry!

Rating: 2 votes, 5.00 average.

Supervised recruitment authorizes the Certifying Officer to require Employers to make an additional search for US workers in the job market.


Prior to the introduction of the PERM Rule on March 28, 2005, Employers were required to advertise job opportunities for three consecutive days in a newspaper of general circulation and 30 days in the job bank of the state workforce agency. if it were deemed more appropriate due to the professional or technical nature of the job, a one-time ad in a professional journal was recommended instead of three consecutive days of newspaper ads. Sometimes even though the Employer dutifully advertised 3 days in a newspaper instead of a journal upon the advice or instruction of the SWA, but the CO would nevertheless require an additional advertisement in a professional or technical ad to obtain a better search of the job market. This additional requirement was based on the assumption that the ad in the newspaper was inappropriate and should have been advertised in a journal.


Extra recruitment in addition to the recruitment required by the regulations was always welcome and permitted, but not required. The ETA 750-A Form asked the Employer to disclose such recruitment, if it had occurred prior to filing the labor certification.


As mentioned above, the pre-PERM norm was to advertise 3 consecutive days in the newspaper, and 30 days in the State Job Service. The choice of 3 newspaper insertions, or one journal, was sometimes open to interpretation. Often the Wall Street Journal would be used, especially for jobs offered on a national or regional basis (usually requiring travel or working in more than one office), but it was usually considered to be a journal, not a newspaper, due to its targeted market, broad circulation and high expense. Consequently one day in the Wall Street Journal would suffice as a journal ad.


The Notice of Posting (now called the Notice of Filing) required to be posted for 10 days on the Employer's bulletin board has been, strictly speaking, not an advertisement, because it's main purpose is to keep the whole process transparent by advising local employees and interested persons that the job is available.


Under the PERM Rule, recruitment was expanded, for professional positions to require three additional forms of recruitment to be chosen from a wide range of 10 generic types of recruitment, if the occupation was deemed to be a profession.


The PERM rule authorizes extra recruitment in the form of supervised recruitment. The CO may request an employer to engage in extra, supervised recruitment,  following the employer's  normal recruitment efforts, even if those efforts are totally compliant with the PERM Rule. This in itself is not objectionable, not only because it is the law, but because there may be occupations, geographical areas, or other cases where additional recruitment should be required.


Nevertheless, the current implementation of supervised recruitment appears to be ultra vires and improperly applied, if the CO issues these extra requirements without regard to any legally established guidelines in labor certification practice.


Under orders of supervised recruitment, employers and attorneys now report that the CO has issued detailed recruitment instructions without regard to the regulatory standards of any rule, whether pre-PERM, current PERM, or existing BALCA decisions. At the AILA Conference in June-July of 2010, the panel reported that the CO had requested up to 6 days of advertising in the Wall Street Journal as well as other expensive forms of advertising far in excess of procedures normal in the industry or previously authorized by law.


It is also reported that under Supervised Recruitment the CO's have also been requiring that the ads include the entire job description and list of requirements be written verbatim in the ads. This is contrary to the PERM Rule which specifies that the ad need only give job seekers a clear idea of what the job is and need not include every detail that would normally be on Form 9089 and that the Employer need not put the job requirements in the ads. It is often thought that a generalized ad, with fewer words and without a statement of requirements is more favorable to US workers, not prejudicial, as it tends to widen the pool of US workers who will apply for the job. The DOL has stated this in their FAQ's.


The immigration bar reports that Supervised Recruitment letters have only a 30 day period to respond. Typically, the Employer may receive a letter advising that supervised recruitment will be required, but oftentimes the letter comes after one week or more from the date the letter was written. The Employer may then be required to provide detailed recruitment information, proposed copy of ads and recruitment, which must be received by the CO within 30 days. Then again, after the recruitment, the Employer may be required to respond with the recruitment report within 30 days of the request for recruitment from the CO.  


Under pre-PERM, the parties were allowed 45 days to respond to the State Workforce Agencies with recruitment information, and extensions were permitted for good cause as a matter of Due Process. Practitioners report they have been successful in getting ad hoc extensions, not as a matter of right, but by entering into an uncertain and time-consuming process.


Experience under pre-PERM with extensions was that Employers had to request extensions and obtain confirmation of the request for extension and that Employers had to submit their requests early on during the recruitment period, not at the last minute. BALCA upheld the Employers' right to request extensions based on Due Process, notwithstanding statements from the SWA's or the CO's that no extensions would be available.


Under PERM, it is contemplated that the preparation of a PERM case, prior to filing, might take more than 60 and up to 180 days. PERM recruitment is more extensive than pre-PERM, since there may be three additional recruitment steps for professional positions, and there is a 30 day waiting period at the end of the process. The Employer also has to take into consideration the validity period of the Prevailing Wage Determination.


The imposition of unusual recruitment requirements and a strict 30 day deadline for substantive responses are onerous requirements not contemplated in the regulations and not justified by established, existing standards found in the pre-PERM or PERM regulations, nor in any BALCA decisions. BALCA itself has stated that the FAQ's do not have the force of regulations and may not make substantive changes in administrative practice.  The abrupt, unexplained and unpublished departure from established requirements for extra recruitment, issued by FAQ's, letters commencing, E-Mails and phone calls is ultra vires, arbitrary, contrary to law, and therefore an abuse of discretion.


The agency does not have the discretion to create substantive, non-interpretive rules, in this manner, which go far beyond the deference to discretion for federal agencies contemplated in Chevron.

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