In recent months, the Department of Labor (DOL) has indicated that it will expand its use of DOL-supervised recruitment in the permanent labor certification program. While previously certain specific kinds of applications were considered possible targets for supervised recruitment, such as those that did not require an educational requirement and certain financial positions in New York City, more and more applications have been designated for supervised recruitment. Supervised recruitment must be taken very seriously because a pattern or practice of not complying with supervised recruitment can debar an employer, attorney, or agent from filing PERM applications for up to three years. The following guidance is provided from materials prepared by the American Immigration Lawyers Association.
There are two types of supervised recruitment, converted and directed. Converted supervised recruitment occurs when an application that has gone through the normal pre-PERM filing recruitment process is ordered for supervised recruitment, normally following an audit. Directed supervised recruitment requires that all or some of an employer’s labor certification applications are subject to a supervised recruitment process at the outset, and no recruitment is done prior to filing the PERM application. (In addition, any employer who withdraws a PERM application after receiving an order of supervised recruitment will be subject to directed supervised recruitment on any new labor certification applications filed for the same foreign national and job.)
Under converted supervised recruitment, four specific notices are received during the process. The first, which initiates the process, is a “Notification of Supervised Recruitment,” which is sent to the employer or attorney. The notice requires the employer to submit a draft job advertisement within 30 days of the notice date. Extensions for good cause may be requested. Additional information can also be requested.
After the draft advertisement and other requested documentation are sent to DOL, the employer or attorney will receive “Recruitment Instructions.” The recruitment instructions will either approve the initial draft advertisement or require amendments and designate the newspaper where the ad must be placed. Other recruitment measures also may be required. Under supervised recruitment, all resumes are directed to a post office box under the control of the DOL. Resumes received by the DOL are forwarded to the employer with a cover letter entitled, “Notification of Resumes Received.” Because DOL requires that the employer include its name in the recruitment, it is possible that some resumes will be sent directly to the employer and these applicants must also be considered as part of the recruitment results.
Next, DOL will send a notice to the employer entitled “Recruitment Report Instructions.” This notice indicates that the recruitment period has ended, and the employer is given 30 days to submit copies of its recruitment efforts, including a detailed recruitment report that includes the names and addresses of all U.S. applicants who applied as well as the resumes of any U.S. workers who applied directly to the employer.
Supervised recruitment is extremely regimented and cases are highly scrutinized by the DOL. Employers must be particularly diligent to comply with all requests, meet the required deadlines, and maintain flawless documentary records. While all employers are strongly encouraged to keep proof of efforts to contact applicants, such as emails, notes from telephone calls, and/or certified mail, employers who are subject to supervised recruitment must be especially thorough.
Prudent employers will want to avoid the risk of supervised recruitment and prepare their cases defensively. For example, employers should avoid the use of job requirements that could be deemed unduly restrictive or too broadly drafted, or don’t articulate specific, identifiable bona fide job requirements, because these are likely to risk an audit and perhaps a denial if the case is converted to supervised recruitment. It may be better to include specific, job-related requirements in the original PERM application and be prepared to document the business necessity of these requirements than to omit them in an attempt to avoid audits.