Most employers wanting to sponsor foreign national employees for green cards must become familiar with filing a PERM labor certification with the Department of Labor (DOL), a process that is meant to protect the U.S. job market. The PERM process is an exacting and onerous one, and applications are often denied for reasons that appear to be exceedingly technical and unpredictable. Denials of PERM applications may be appealed, and published decisions of those appeals by the administrative body BALCA offer some guidance in preparing successful applications.
One important decision concerns the content of advertisements for the offered job. The regulations set forth specific advertising and posting requirements for recruitment efforts, some of which are mandatory for all types of positions and some additional forms that must be used for professional or skilled-worker positions. On appeal it was held that DOL may not deny a PERM application because the content of all the advertisements does not match; the additional forms of recruiting may contain qualifications not required in the mandatory forms. Nevertheless, it is advisable, to the extent possible, to use identical language in all recruitment efforts to avoid audits or outright denials by DOL.
Another decision addresses the PERM application itself. The application has a box that asks whether experience in the job offered is required for the job, and another in which to answer whether experience in an alternative occupation would be acceptable. This is confusing, because an employer is not allowed to consider the experience a foreign worker gained on the job. (In actuality, most employers are interested in sponsoring employees because they have proven themselves to be valuable in the position offered.) However, to confirm that the job is open to U.S. workers, the employer cannot require more stringent qualifications of a U.S. worker than the foreign worker. This means that the employer cannot ask for more experience or education than the foreign worker had at the time he or she was hired. It is therefore unclear which box should be checked when experience is required in the same occupation, but not with the same employer. BALCA has affirmed that it is acceptable to require experience in an alternate occupation but not the same occupation.
The regulations require that an employer who files a PERM application must notify the employer’s employees at the place of employment, and specifies the content of the notice, which includes the employer’s name. BALCA affirmed the denial of a PERM application when the notice included the name and phone number of the employer’s president, but not the company.
These issues are highly technical, and show a tendency of BALCA to strictly enforce the language of the regulations. Even obvious typos may not be forgiven and are difficult to correct. Employers and their employees must get it right when the PERM application is filed, especially since appeals are difficult and extend by years an already drawn-out, laborious process.