Employers who wish to sponsor foreign national employees through the PERM Labor Certification process should take special note of the settlement agreements announced by Department of Justice (DOJ), Civil Rights Division, Immigrant and Employees Rights Section (IER) and Department of Labor (DOL) last week.
These settlement agreements are connected to the U.S. worker discrimination suits based on citizenship or immigration status under 8 USC §1324(b) that the government filed against Facebook in December 2020. While the settlements have no binding legal effect on employers (other than Facebook), the allegations and settlement terms may be a harbinger of future enforcement action by the U.S. government.
What is PERM?
The PERM (Program Electronic Review Management) test of the labor market is a requirement for most employment-based permanent residency (or green card) cases. With few exceptions, U.S. employers cannot sponsor their foreign national employees for permanent residency until the DOL certifies to U.S. Citizenship and Immigration Services (USCIS) that no U.S. worker[1] is able, willing, and qualified to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
While the PERM process is antiquated and multifaceted, the relevant aspect for the Facebook litigation and settlement is the PERM recruitment process. In order to show the DOL that no able, willing, and qualified U.S. worker is available to fill the position advertised in compliance with the PERM recruitment process, employers must recruit for the position that they plan to fill with a sponsored foreign national. The process is time consuming and complex.
The PERM recruitment requirements vary depending on the position, but for professionals (defined as positions requiring at least a bachelor’s degree), under 20 CFR § 656.17(e)(1), the employer must take the following steps:
- Place the job order with the relevant State Wage Agency (SWA) for 30 days;
- Place two print advertisements in the Sunday edition of papers with general circulation in the relevant geographic area, and
- Advertise in three additional places, as permitted by the regulations, including the following:
- Job fairs
- The employer’s website
- A job search website
- Trade/professional organization publications
- Private recruitment firms
- Certain employee referral programs
- Campus placement programs
- Certain local/ethnic newspapers
- Radio or television
Employers are also required to provide notice that they intend to file a labor certification application, either to a collective bargaining representative, if applicable, or by posting notice to the employees at the location of employment. 20 C.F.R. § 656.10(d).
Of course, these steps are not typical for regular job recruitment in the U.S., but employers are required to navigate this process nonetheless. There is no imposition of a specific selection among the “additional” recruitment options. Ultimately, the employer is required to have undertaken PERM recruitment in “good faith” to ensure the position is clearly open to U.S. workers.[2] See 20 C.F.R. § 656.10(c)(8); Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019).
Once the above steps have been taken, employers must review all applications and determine whether any qualified U.S. workers are available and qualified for the position. Only if none meet the minimum requirements can the employer continue in sponsoring the foreign national for permanent residency based on the recruitment conducted.
So what were the main allegations against Facebook?
The government’s complaint alleged that Facebook had discriminated against U.S. workers during the PERM recruitment process, and that it “routinely preferred temporary visa holders (including H-1B visa holders) for jobs.” See DOJ, Office of Public Affairs, “Justice Department Files Lawsuit Against Facebook for Discriminating Against U.S. Workers”, Dec. 3, 2020 [hereinafter, “DOJ Press Release”].
Specifically, the complaint alleged that Facebook’s approach to PERM recruitment was discriminatory because Facebook “failed to advertise [PERM] vacancies on its careers website, requiring applicants to apply by physical mail only.” The complaint compared Facebook’s approach to recruitment in the PERM context with its “usual hiring process,” which the complaint claimed involved “advertising positions on its careers website, accepting electronic applications, and not pre-selecting candidates to be hired based on a candidate’s immigration status.” See DOJ Press Release.
These allegations seem to ignore that the applicable regulations do not require recruitment to be conducted as an employer would normally recruit for a job position. (After all, it is doubtful that Facebook, a massive social media company, would feel the need to take out advertisements in the Sunday edition of the local newspaper to fill vacancies.) Rather, the PERM process is meant to provide additional steps and oversight to protect the U.S. labor market.
According to the DOJ’s investigation, Facebook’s approach to PERM recruitment “dissuaded U.S. workers from applying to PERM positions.” The DOJ claimed that Facebook had received zero or one applicant from a U.S. worker for 99.7% of its PERM advertisements, compared to over 100 applicants for its non-PERM advertisements. See DOJ Press Release.
This discrepancy, in part, led the government to conclude that Facebook had not engaged in a “good faith” effort to ensure that no U.S. workers were available for the PERM positions advertised.[3]
What are the major terms of the settlement?
Although Facebook did not admit any fault in the settlements,[4] it agreed to pay $4.75 million to the U.S. as a civil penalty, and up to $9.5 million to potential victims of the alleged U.S. worker discrimination.
Facebook also agreed to change its PERM recruitment process and cooperate with additional oversight from the DOL to curb any potential U.S. worker discrimination. The following actions are some of the ways Facebook will modify its PERM recruitment regime:
- Posting advertisements and accepting job applications for PERM positions on its company website in the same manner it advertises for non-PERM positions;
- Not requiring applicants for PERM positions to apply through the mail;
- Entering all applicants for PERM-related positions in company’s internal recruiting system so they can be considered for related job opportunities; and
- Taking other steps that are necessary to ensure that its recruitment for PERM positions closely resembles its recruitment practices for non-PERM positions.
Facebook has also agreed to provide the DOJ with its regular recruitment reports (as defined in 20 CFR § 656.17(g)) every six months for the next three years to ensure its compliance. With respect to the DOL settlement, it has been reported that Facebook will be required to conduct additional recruitment and will be subject to routine audits.
What is the potential effect of the Facebook settlement agreement on employers navigating the PERM process?
Because the terms of the settlement agreement are only binding on Facebook, and because the DOL has done nothing to update the PERM recruitment regulations, there are no new legal requirements for employers. Still, given the harsh allegations (and heavy penalties), employers would be wise to take a second look at their PERM recruitment regime to reduce exposure and potential litigation.
Prior to the Facebook settlement, many employers and immigration lawyers understood the “good faith” recruitment requirement to bar the employer from engaging in tactics that might discourage U.S. workers from applying. But the government’s complaint (assisted by Facebook’s capitulation via settlement) seems to expand the “good faith” requirement so that PERM recruitment schemes must closely resemble non-PERM recruitment.
This new interpretation of the “good faith” requirement is directly at odds with a previous Board of Alien Labor Certification (BALCA) decision in East Tennessee State University[5], which states that “employers seeking permanent labor certification may have to conduct their recruitment in a manner different than they would normally in order to ensure that the position is clearly open to all qualified U.S. workers.” The DOL also acknowledged in its 2008 Guidance Memo that, “the permanent labor certification program imposes recruitment standards on the employer that may deviate from the employer’s normal standards of evaluation.” The DOJ has not offered an explanation for this seeming contradiction with DOL guidance regarding its own regulations.
Employers should take all of this into consideration when approaching PERM recruitment and consider whether its processes are susceptible to a similar discrimination argument by the government. While close adherence to the DOL regulations is still required, employers may need to look beyond the regulations and into their usual recruitment practices to determine the best approach. For example, if an employer would typically advertise a position on its website and accept applications via application portal or email, the same methods may be advisable for PERM recruitment, even though those are not explicit requirements in the regulations.
Of course, it is unlikely that an employer’s recruitment process will be identical for PERM and non-PERM positions due to outdated and onerous PERM regulations. But with a thoughtful approach, employers can aim to avoid litigation and other harsh penalties imposed by the DOJ.
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About the Author:
Alexandra Crandall is an attorney at Dickinson Wright in Phoenix. She practices business immigration, assisting employers with the preparation of immigrant and non-immigrant petitions to maintain their foreign national workforce. Prior to joining the firm, Ms. Crandall served as a Judicial Law Clerk to the Honorable Jennifer B. Campbell at the Arizona Court of Appeals. She can be reached at 602-285-5074 or acrandall@dickinsonwright.com. Her bio can be accessed here.
[1] A “United States worker” typically means a person who is a U.S. citizen, U.S. national, lawful permanent residence, refugee, or asylee. 20 CFR § 656.3.
[2] See 20 C.F.R. § 656.10(c)(8); Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019).
[3] Id. at fn 2. See Matter of Am. Specialty Pharmacy, 2016-PER-00016.
[4] At this time, only the DOJ settlement agreement has been made available to the public.
[5] East Tennessee State University, 2010-PER-00038, slip op. at 11 (Apr. 18, 2011) (en banc).