The PERM Labor Certification process requires “good faith” recruitment in order to the test the U.S. labor market to demonstrate there are no U.S. workers “able, willing, qualified, and available” for the position. In December 2020, DOJ filed a lawsuit against Facebook in relation to their recruitment efforts. The lawsuit alleged that Facebook deterred U.S. workers by requiring applications to be submitted via mail and for not hiring U.S. workers.

In October 2021, DOJ reached a settlement agreement with Facebook including civil penalties of $4.75 million to the U.S. and $9.5 million to eligible victims of Facebook’s discrimination. Another aspect of the agreement included Facebook being required to conduct more expansive recruitment efforts and being required to accept electronic resumes or applications from U.S. applicants. 

Facebook accepted electronic resumes and applications for open position that were non-PERM related but did not accept these in their recruitment efforts for the PERM Labor Certification process. As a result of this settlement, although the regulations do not mention whether companies must accept electronic resumes or applications during the recruitment process; it is advisable for companies to consider doing so moving forward, as opposed to solely accepting submissions of resumes or applications via mail. As a cautionary measure, companies should consider pursuing their recruitment efforts to mirror as closely as possible to their non-PERM recruitment efforts while also adhering to DOL regulations.

The settlement exhibits that following the DOL regulations alone is not sufficient for the PERM Labor Certification process and that the current regulations are antiquated and are not common employment or hiring practices today. For example, the regulations mandate companies to advertise in two Sunday newspapers. However, this is not a common practice for non-PERM related recruitment efforts.

Further, as a result of this settlement, there may be an increase in PERM audits to ensure compliance of recruitment efforts, which will result in the prolonged processing of PERM cases. All in all, it is clear from this settlement that DOL requires more than just “good faith” recruitment. If you have any doubt as to whether any changes need to be made to your company’s PERM program, please consult with one of our PERM attorneys, Krystal Alanis, Camille Joson, or Ruth Garbanzo.

By Ruth Garbanzo, Associate

Ruth Garbanzo assists clients in the beginning stages of their green card process in the Perm Labor Certification Department at Reddy Neumann Brown PC, Houston’s largest immigration law firm focused solely on U.S. employment-based immigration. She also advises clients on the final stages of their green card process in the Adjustment of Status Department. Throughout our client’s green card journey, Ruth strives to provide diligent service to each client from start to finish.