Many practitioners have been forwarding samples of audits they received for PERM cases, in which they question the manner that the Certifying Officer has requested detailed information about the qualifications and reasons for rejection of U.S. Workers.
Remembering that the phrase "U.S. Workers" is a term that includes persons with permanent work authorization (U.S. Citizens, Permanent Resident Aliens, Asylees, Refugees and certain persons with amnesty rights), all other kinds of aliens with temporary work authorization may be lawfully rejected during a recruitment campaign.
It is not generally understood by Employers that the statute requires the Department of Labor to determine whether there are qualified U.S. workers (qualified, able, willing and available) and that the burden of proof is on the Certifying Officer to demonstrate the availability of such workers.
In practice, the C.O. usually denies a case by alleging that the Employer did not follow the regulations, i.e., by an error such as omission or failure to provide documents or information required by the Rule.
One of the documents required by the PERM Rule is a Recruitment Report, in which the Employer must explain the reasons why U.S. workers were rejected and not hired.
This report must be quite detailed, and failure to provide adequate documentation will result in a denial of PERM.
Recently the C.O. has been asking for detailed information about recruitment campaigns in conjunction with audits. The information requested includes resumes of U.S. workers, dates and manner of attempts to contact workers, and lawful job related reasons for rejection.
The word "rejection" is a term of art used broadly by the DOL in its PERM Rule to include not only categories of U.S. workers who were rejected by the Employer but also those U.S. workers who did not prosecute their applications for employment, or were unavailable or unwilling to accept the job.
A recent audit received by an employer from the DOL contained the following request:
- Please provide resumes and applications for all U.S. workers who applied for the employer's job opportunity listed on the ETA Form 9089.
- In addition, please provide a report that lists the following information for each U.S. worker rejected for the job opportunity: the date(s) the employer contacted the U.S. worker; the date(s) the employer interviewed the U.S. worker; if appropriate, the reason(s) the employer did not interview the employee; the specific, lawful job-related reasons the U.S. worker was rejected; and how the U.S. worker was informed that he or she did not qualify for the job opportunity.
- Also include information that documents the employer contacted the applicant(s) by phone (telephone logs), e-mail (dated copy of electronic transmission) and/or by mail (copy of letter sent to applicant[s]), along with a copy of certified mail/signed green return receipt card).
Although some of the above details are required by the regulations, other items are not specifically enumerated as requirements in the PERM Rule. Note that certified mail/signed green return receipt cards, while highly recommended, are not a legal requirement. Informing US workers that they have been rejected is also recommended, but not required, and would depend in part on the business policy of the employer or the community.
DOL requests for detailed documentation in recent cases are an indication that the agency is now entering into the phase of challenging employer's interview procedures and fair, objective treatment of US workers by applying pre-existing BALCA law.
The Board of Alien Labor Certification Appeals has previously held that the Employer must document with very convincing evidence that it has contacted US workers. This may include proof of attempts to contact on multiple occasions; prompt efforts to contact not lasting more than two weeks in some cases; and proof that certified mail receipts were signed by the job applicant, and not by another member of the household.
This should serve as a warning that Employers may not simply expect to submit a Recruitment Report with vague generalities, as suggested by the PERM Rule, but that only a highly detailed recruitment report supported by strong documentation of the entire process is sufficient to overcome an audit when it occurs!