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Joel Stewart on PERM Labor Certification

PERM Professional Ads May Be Placed by Private Employment Agencies

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In a recent case, an Employer used a private employment agency to search for US workers. When the agency placed an ad as a form of professional recruitment, it did not include the name of the employer. The Department of Labor then denied the application because the name of the employer was missing.

The PERM Rule specifically requires the name and location of employers to appear in two mandatory Sunday newspaper ads which are part of the basic recruitment requirements described in 656.17(f) but does not state the employer’s name must appear in other forms of recruitment as in 656.17(e).

In a series of decisions, including an en banc ruling ago for the Symantec Corp. (2011-PER-1856, July 30, 2014), the Board of Alien Labor Certification ruled that while the name of the employer must be included in Sunday newspaper ads, the Department of Labor cannot extend this non-regulatory requirement to other forms of recruitment.

The current decision, in the matter of RML Construction, Inc., (2012-PER-1774, August 31, 2016), is particularly important because it limits the power of the Department of Labor, a US administrative agency with wide discretion, to interpret the PERM statute and regulation. The decision clarifies the fact that agency memos and other forms of guidance amount to nothing more than the opinion of the moment, while statutes and regulations are laws that must be followed.

Although the Supreme Court of the United States has held that opinions of agencies should be accorded deference because they are presumed to know what they are doing, agencies cannot create law through interpretations unless they rationally flow directly from the clear intent of the law.

In RML, the Department of Labor focused on the section of the PERM Rule regarding the requirement to place two Sunday newspaper ads with the name of the employer and confused this with a different section of the law that states that advertisements placed by private employment agencies may be used as an optional form of recruitment.

On appeal, the judges, holding in favor of the employer, said that the DOL should have focused not on the name of the employer, as is normally the case for newspaper ads but on the occupation in a more generalized sense.

The decision in Symantec, a pivotal precedent, states that the purpose of the PERM recruitment rule is to permit employers to “advertise for the occupation involved in the application, as opposed to the specific job opportunity for which certification is sought.” In plain language, this means that the identity of the employer need not be included, because only the existence of a job opportunity in the occupation is important.

The PERM requirement to include employers’ names has been problematic, since employers do not always want to include their names in the ads and cannot include their company name when private employment agencies place them. In fact, if the private agencies were to advertise in the name of the employer, they would have no way to reap the harvest of their labors.

The RML decision asserts that all forms of recruitment are not equal, but employers should remember that each form of PERM recruitment has its own nuances interpreted by the Department of Labor and the Administrative Law Judges. Here the Board only discussed the optional recruitment step to use private employment agencies.

The RML decision asserts that all forms of recruitment are not equal, but employers should remember that each form of PERM recruitment has its own nuances interpreted by the Department of Labor and the Administrative Law Judges. Here the Board only discussed the optional recruitment step to use private employment agencies.

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Updated 09-08-2016 at 07:03 PM by JStewart

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Comments

  1. 111's Avatar
    The problem with the decision or the law is it fails to acknowledge how the employment agency is making money and why the employer is using an employment agency in the first place, and what a PERM position is. The PERM position is granted when no american can be found who is able to do the job, which in itself is a laugh and rare given the millions of educated americans and that the experience gained is on the job.
    Evidence regarding what the employment agency is being paid to do should be required with the perm application to the DOL under the regulations, as it does not make sense that an employer when it uses an agency at that point is really looking to hire anybody else but the foreign PERM applicant.
    It is most likely de incentivized to hire any american worker if it is getting a flat fee even if it finds no-one. Why would they do all that work to get the same fee? Therefore the DOL requirement of disclosing the name is a check on fraud. Maybe the real problem/ mistake was allowing employment agencies in the PERM or h1-b process at all, or not requiring payment information to be disclosed, as hiding an employer does not allow an applicant the benefit of notice and therefore violates an american applicants due process rights.
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