The Department of Labor and Department of Justice have separately announced settlement agreements with Facebook regarding alleged discrimination against U.S. workers in its use of the “PERM” program—the regulatorily mandated process for an employer to sponsor a worker for permanent residency. In the settlement, Facebook admits no wrongdoing, and in many ways, the settlement has business immigration lawyers scratching their heads.
The PERM process is one that is, by design, strange. It is a test of the U.S. labor market to determine that no willing, able, and qualified U.S. workers are available for a given position, and by showing this, allows for an employer to instead sponsor a non-U.S. worker for that position. The process is regulatorily heavy, with very exacting standards. At the same time, though, the test of the labor market doesn’t seem to match how the world works in 2021. For instance, in showing that no qualified U.S. applicants are available for a non “professional” position, an employer must generally post two Sunday newspaper advertisements in the newspaper of widest circulation in the area, post internal notices that it is undergoing this process, and post a job order with the State Workforce Agency. That’s it. If nobody applies, then, by regulation, an employer has shown that there are no able, willing, and qualified U.S. workers for a position, nevermind that a posting on an online job board may bring in dozens of applicants. In the end, the best way to think about the process is not that it is a recruitment tool, but rather a regulatory test of the labor market to see if any minimally qualified individuals are available for a position.
This is the core of what causes confusion in this settlement. Facebook seems to have met the regulatory requirements for the position (there is some argument that some parts were not followed correctly), but the Department of Justice seems to conflate the PERM process and its test of the labor market with actual recruitment. For instance, Facebook required applicants in the PERM process to mail in resumes, whereas their actual recruitment permitted online applications. On its face, this does seem strange, but if one was to undergo supervised recruitment by the Department of Labor, it would require mail-in resumes. The Department of Justice also points to the disparate responses to these job postings—non-PERM job postings receiving hundreds or thousands of applicants, with PERM job postings receiving few to none. That, again, seems to be expected where one application process is far more onerous than one for an identical position.
The bottom line of all of this is business immigration lawyers will be pouring over the details of this settlement for quite some time as we adapt our practices to avoid these outcomes. At the center of the PERM process is the assumption that the recruitment campaign will be conducted in good faith, and so my guess is increasing efforts will be made to demonstrate this good faith in the PERM process. At the same time, a personal opinion is that if the government does not like the way the PERM process works it should simply change the regulations.
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