PERM Recruitment Job Order: Stage 2 and 3

August 3, 2017 Chelsea Iversen

Now that you understand what the PERM recruitment process is, you’re ready to move on to the PERM recruitment job order – or stage two and three of the process.

Stage Two of PERM Recruitment Process: Job Order

Once your immigration attorney has verified that the salary to be offered by the employer meets the requirements of the prevailing wage regulations, the PERM recruitment Job Order is commenced with the preparation of the Job Order form. The PERM recruitment Job Order is a mandatory recruitment activity and must run for at least 30 days on a website or job bank designated by the State Workforce Agency with jurisdiction over the work site.

Stage Three of PERM Recruitment Process: Activities

Upon receiving confirmation that the employer has posted the PERM recruitment Job Order, your attorney should prepare draft recruitment materials for review: “Advertisement” and “Internal Posting.” The instructions for these items are included in each draft.

TIP: If edits or changes are made to these drafts, they should be reviewed by your immigration attorney before the employer begins recruitment. They must ensure that the materials still meet DOL regulations regarding the content of these advertisements.

TIP: It is possible to use recruitment materials that have been recently used to recruit for the same position being offered in the labor certification, so long as the recruitment is not over 180 days old. These should be reviewed by your attorney to ensure they meet DOL regulations before they can be submitted in support of a PERM labor certification application.

TIP: There are separate regulations concerning recruitment for non-professional occupations and for college and university teachers who were hired in the past 12 months. These situations should be brought to the attention of your attorney in order to evaluate if such regulations may apply.

Using these draft materials, the employer must conduct pre-filing recruitment for the offered position, consisting of the following mandatory activities (in addition to the Job Order posted in stage two of the PERM Process):

PERM Recruitment Activity Duration/Frequency Documentation to Submit
Two newspaper advertisements (or one newspaper ad and one trade/professional journal ad) Newspaper ads must be posted on two Sundays may be two consecutive Sundays) Original tear sheets are preferred; copies of invoices, affidavits, receipts or other confirmation that the ads were posted (preferably indicating the date of posting) are acceptable
Internal posting 10 consecutive business days (not calendar days) Original is preferred; a scanned or faxed copy is acceptable

TIP: Please note that the mandatory recruitment materials may not be more than 180 days old at the time of filing the PERM application. In addition, they may not have occurred within the 30 days preceding the filing of the PERM application.

TIP: For newspaper advertisements, the employer must select a newspaper of general circulation in the area of intended employment. The employer generally should be familiar with which publications it has used in the past to successfully recruit candidates. Some newspapers offer a service where the Sunday advertisements will also be posted to a job search website (either the newspaper’s own website or a website such as CareerBuilder.com). This service is usually free, but some newspapers may charge a fee. This posting can be used as proof of advertising on a job search website.

You may use abbreviations or shorten the text of the draft advertisement the attorneys prepared. If you make edits or changes to these drafts, they should be reviewed by your attorney before posting the newspaper advertisements to ensure that the content still meets DOL regulations.

TIP: On-campus recruitment or campus placement advertisements may not be an appropriate form of recruitment for high-level positions or positions requiring many years of experience.

TIP: Please note that the discretionary recruitment materials may not be more than 180 days old at the time of filing the application. In addition, they must not have occurred within the 30 days preceding the filing of the application. The only exception to this strict timeline is that only one of the three forms of discretionary recruitment may occur within the 30 days preceding the filing of the PERM application.

The employer is required to gather and review any resumes received in response to any of the above PERM recruitment activities and provide a lawful job-related reason why the applicant is not qualified for the position. This means that each resume must be reviewed and, in some cases, candidates must be interviewed. The employer must prepare a detailed application evaluation form identifying who applied and listing the reason why each candidate was not qualified for the position.

PERM Recruitment Job Order Instructions on Resume Screening

  • The employer may have agents or attorneys represent them throughout the labor certification process. The employer, and not the attorney or agent, must be the first to review an application for employment and must determine whether a U.S. applicant’s qualifications meet a minimum requirement for the position. Attorneys may provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies.
  • Through the audit process, the DOL may review evidence regarding how the employer received resumes. If any of the recruitment materials direct applicants to send their resumes to any location other than directly to the employer, the employer could face an audit asking for an explanation of how the resumes got to the employer.

If PERM applications are received, then the employer must provide the attorneys with the following statistics before the PERM application is filed:

  • The number of open related positions there were at the outset of the recruitment period
  • The number of resumes received in response to the recruitment efforts
  • The number of individuals rejected for lawful, job-related reasons
  • The number of individuals who were interviewed
  • The number of job offers that were extended
  • The number of offers that were accepted
  • The number of openings that remain at the close of the recruitment period

TIP: The employer must retain recruitment materials and results for at least five years.

Why PERM Recruitment May be Rejected

The following are considered “lawful, job-related reasons” an applicant responding to PERM recruitment may be rejected:

  1. Failure to meet the stated minimum requirements for the position
  2. Inability to perform the core job duties of the position
  3. Failure to attend a scheduled interview or to respond to a request to schedule an interview
  4. Disinterest in the job (i.e., the applicant declines the offer of employment)
  5. Unwillingness to accept the offered wage
  6. Bad work references or references that cannot be checked
  7. Applicant’s lack of proficiency in the English language, if it would affect job performance or reliability (e.g., a receptionist or telephone operator)
  8. Applicant does not have permanent employment authorization (i.e., is not a U.S. citizen or a lawful permanent resident)

TIP: After the ads have been posted for the required time period, there is a mandatory 30-day cooling off period before the ETA-9089 (PERM) application may be submitted to the DOL.

For more information on the PERM process, watch our webinar, Surviving PERM Labor Certification, on-demand.

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