Hiring a Foreign Worker? Making Sure Your PERM Employment Recruitment Efforts are “Audit Proof “to Reduce Stress for Employer and Foreign National Employee
Posted by: ScottMond Law Firm
February 29, 2012
Topic: Employment Law & Immigration
Could it be that you are a U.S. Citizen Employer who has found the perfect employee? They are loyal, have a good attitude and work hard. Only one problem, they are not U. S. citizen or even Permanent Residents. If they have a visa, ensuring the visa is valid for work purposes is essential. But even then, that visa is only temporary. So now you are faced with having to lose this very valuable employee or fear that U.S. Citizenship and Immigration Services (USCIS) will find you out, and the penalties of fines or jail is certainly not worth it!
The purpose of this short article to briefly lay out the standards that an employer must show before he or she can hire a non- U.S. Citizen or U.S. Permanent Resident worker. All hope is certainly not lost, but U. S. workers cannot be displaced. The goal of keeping a foreign national worker on your staff permanently, and at the same time not displacing U.S. workers to the satisfaction of the Department of Labor (DOL), is explained below.
Employers are permitted under U.S. Federal Regulations to sponsor anyone from around the world for a permanent green card status in theUnited States. The first major hurdle the employer must overcome is successfully filing and getting approved a PERM Labor Certification with the Department of Labor. (Exception if theU.S.worker is pre-certified). Essentially there are 3 steps to complete for a foreign national to become a U.S. Permanent Resident based on the efforts of employer. Step 1-PERMLabor Certification. Step 2- I-140 Petition byU.S.Employer for Foreign National Worker with USCIS. Step-3- I-485 filed by the Foreign National Worker to adjust his or her status to that of a U.S. Permanent Resident.
The most difficult of the steps is the PERM Labor Certification Process which is the exclusive focus of this article.
PERMconsists of a very detailed recruitment process with the DOL that is different from any recruitment process an employer may have seen before. At first the employer may not believe their attorney as to how detailed, specific and odd the process may be. But believe it! The quicker you just go along with your experienced immigration attorney’s advice on abandoning traditional notions of recruitment and just letting your attorney guide you step by step, the faster one can get through the process successfully; without wasting the employees, employers, and attorneys valuable time and money.
Under the PERM rules, an employer is expected to conduct recruitment during a 30 to 180 day period prior to filing an application. This is a VERY strict rule. Before the PERM application is filed with the DOL, not more than 180 may have passed, and there is a 30 day quiet period where no recruitment can occur just before the PERM filing with DOL.
You and your attorney must draft recruitment ads as if it is a science. Depending on if the position is professional or a non-professional position governs how extensive recruitment will be based on the DOL guidelines. Professional positions require a minimum, of 6 types of different media advertisement along with posting ad with the state. In contrast, a non-professional position requires a minimum of 2-3 different mediums of advertising. Even the medium of advertising is governed by the Federal Regulations. Whether a position is professional or nonprofessional is also a legal question.
Minimum information that must be listed in the ads are as follows: Name of employer, direct applicants to report to or send resumes to the employer (depending on what is appropriate for the occupations); provide a job description specific enough to apprise U.S. workers of the job opportunity; and indicate the geographic location of the job opportunity clearly enough to permit applicants to under the commute. Wage and salary does not have to be included.
Despite email and fax being the standard way in today’s modern society as the way to request the resumes or applications to be returned, use only a P.O. Box or physical address to avoid a possible audit or problem with DOL.
It should be noted that audits are random, and the way that DOL ensures thatU.S.employers have really searched theU.S.market place for qualified candidates who are alreadyU.S.citizens or Permanent Residents.
It is important to post all jobs with the local State Workforce Agency (SWA). The posting of the job is required for 30 days, and the ad must stop running 30 days before thePERMapplication is submitted to DOL.
Finally, it is essential to maintain a recruitment report to demonstrate and track the employers response to resumes and applications received from the general public in response to the various ads posted in the various recruitment mediums. The employer may use the telephone to contact interestedU.S.workers but must be sure to maintain detailed notes memorializing the attempts and/or responses. If telephone is used to contact applicants, the recruitment report must indicate the attempts the employer made to contact the applicants and include details such as: when or how many times it attempted to contact the applicants by phone; whether the attempted contacts were to applicants’ place of business or home; with whom a message was left, if any, and what the message was; and whether the employer attempted alternative means of communication, such as a letter.
An important tip is to advertise as multiple job openings whenever possible. The idea is that you MUST hire any qualified and availableU.S.worker who responds to the position, and you may still hire your foreign national worker if still needed after you have found aU.S.worker that meets your needs as well.
This process absolutely requires the guidance of an experienced U.S. Business and Immigration attorney. For further information you may contact us at[email protected] or call us at our telephone number(s) conveniently listed on our website at http://www.scottcclaw.com/
ScottMond Law Firm