Consideration of Job Applicants

Index

The PERM Rule does not have any subsections explaining to employers how consideration of job applicants should take place, however, there is a body of ALJ decisions addressing the issue of fair, complete, and bona fide job searches. The requirement of bona fide consideration comes from attestations on the PERM Form in box N.8. The job opportunity has been and is clearly open to any US worker,” and in box N.9., “The US workers who applied for the job opportunity were rejected for lawful job-related reasons.”

Job Applicants

The employer must consider all US workers who are qualified, able, available and interested in the job opportunity. Rejection without interview and questions regarding qualifications are the subject of many denials. An important, current topic is pro-active recruitment of refugees from Iran and Iraq as qualified US workers.

On the Job Training

In PERM recruitment, the employer must consider an applicant qualified if the worker can acquire the skills necessary to perform the job duties during a reasonable period of on-the- job training. The meaning of the word reasonable depends in part, on your point of view.

Recruitment Reports

Consideration of job applicants is documented in a recruitment report. A defective recruitment report does not provide sufficient detail about the job applicants’ qualifications and lawful, job-related reasons for rejection.

Retention of Documents

The employer must retain copies of the application for labor certification and all supporting documentation for a period of five years from the date of filing both for basic and supervised recruitment. The term supporting documents is not defined but seems to fall into two categories: basic and additional. Both types may be retained by the employer or another party such as an attorney, agent, or representative.