If you are an employer planning to sponsor one of your employees for a green card, there are several steps to the process. The most well-known part of the process and the one we receive the most questions about is the process of testing the labor market, also called recruitment. Prior to allowing a foreign national worker to get a green card for permanent employment in the U.S., the government requires that the employer test the labor market to ascertain whether there are any willing, qualified and available U.S. workers who meet the requirements for the position. Below are the answers to some common questions about the recruitment process.
What do you mean by “recruitment”?
Recruitment for PERM is the process of placing advertisements for the job that you are offering to the foreign national. All employers conducting recruitment for PERM must place an ad with the State Workforce Agency, two Sunday newspaper ads, and something called a Notice of Filing, which is a description of the job that is placed in a conspicuous location at the place of employment. For professional positions, meaning positions that require a Bachelor’s degree or higher, you must place ads through 3 additional methods. The regulations provide 10 options that you can choose from, such as posting the job on the employer’s website, posting on a job search website like Monster.com, on-campus recruitment or participating in job fairs. Recruitment lasts for 60-75 days.
Do I actually have to place advertisements?
Yes. You must conduct recruitment in good faith, meaning you place all advertisements as specified above and you must review and consider each resume in light of the job requirements and honestly assess whether the applicant meet the requirements.
Do I have to interview every applicant?
No. You must review each resume but that does not mean you have to interview every applicant. Some applicants may be rejected without an interview if it is clear from their resume that they do not meet the requirements. For example, if the job requires a Bachelor’s degree plus 5 years of experience in advertising and the person’s resume shows they are a new college graduate with a Bachelor’s degree and no experience, you could reject this applicant without an interview.
If I find a qualified, willing and available U.S. worker, do I have to hire them?
No. If you find a candidate that meets all the minimum job requirements you do not have to hire them. However, if you find a qualified, willing and available U.S. worker you must stop the PERM process, as the test of the labor market has revealed that there are U.S. workers who could perform the foreign national’s job.
Recruitment to test the U.S. labor market is the longest part of the PERM process and it is also the foundation of the case. Employers must adhere to strict regulations regarding the timing, content and location of the advertisements they post, have a system for thoroughly evaluating each applicant and prepare comprehensive, detailed documentation that must be maintained in an audit file for at least 5 years from the date of submitting the Labor Certification. If you are interested in sponsoring an employee for a green card it is important to consult with an immigration attorney to ensure the process is done correctly.
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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