Sponsor foreign workers for green cards in 2021: Top 10 issues employers need to validate in wake of $ 14.25 million financial settlement

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United States: Sponsor foreign workers for green cards in 2021: Top 10 issues employers need to validate in wake of $ 14.25 million financial settlement

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What is the current state of affairs?

  • Low unemployment rates and a shortage of STEM talent continue to drive the sponsorship of foreign worker visas by U.S. employers.
  • H-1B visas have a six-year cap, unless workers are sponsored by their employers for “green cards” early in the process (usually before the fourth year).
  • Many employers, especially in the tech field, offer foreign workers to sponsor a “green card” upon entering the company as an incentive to recruit.
  • Companies that sponsor workers for employment-based green cards are required to show as part of the application process that they have not found any qualified U.S. workers to fill the position, a labor market testing program known as “PERM” sponsorship.
  • A large tech company agreed on October 19, 2021 to pay a fine of up to $ 14.25 million, including $ 4.75 million to the U.S. government and up to $ 9.5 million to eligible victims of alleged discrimination.
  • The government lawsuit claimed the company illegally reserved jobs for the foreign workers it sponsored for permanent residence instead of seeking out and considering available American workers.
  • The Ministry of Justice complaint alleged that the company improperly departed from normal recruiting standards by requiring that applications for PERM-sponsored positions be mailed to the company rather than, as was standard practice for general recruiting, submitted in line.
  • The complaint further alleged that the company did not advertise these positions on its careers website, as was its standard practice for general recruiting, which appeared to result in a very low number of applications from American workers for the PERM roles.
  • The Ministry of Labor (DOL) also carried out a regulation with the company based on its audit of some of the company’s pending PERM applications, in which the company has agreed to engage in additional notice and recruiting for US workers and as a result l The company will face continuous audits by DOL.
  • As part of the regulations, the government will monitor the company’s PERM program for the next three years, and the DOL will conduct additional audits of the company’s PERM records.

How is the government likely to apply PERM sponsorship requirements in light of this regulation?

Employers seeking to sponsor foreign workers for permanent residence in the United States should embark on a process to test the United States labor market by recruiting to determine whether there are capable, willing, available, and qualified American workers for the post to be offered abroad national. A sponsoring employer must submit a certificate to the DOL on ETA Form 9089, Application for permanent employment certification, confirming that the employer has undertaken all the recruitment steps required by the DOL for the position. The employer is also required to offer at least the prevailing salary for the position, as determined by the DOL, based on the requirements of the position and the workplace.

The recruitment steps include two mandatory requirements: placing a 30-day job order with the National Workforce Agency and placing two ads on Sundays in the large-circulation employment newspaper. considered. The employer must also post an internal notice of the filing of the PERM application. In addition, for professional positions (i.e. positions for which a bachelor’s degree or higher university degree is required), the employer must undertake three additional stages, at the employer’s choice, among the following list of ten options:

  • Career fair,
  • Employer’s website,
  • Job search site other than that of the employer,
  • Recruitment On Campus,
  • Commercial or professional organization,
  • Private employment office,
  • Employee referral program with incentives,
  • Campus placement office,
  • Local or ethnic newspaper, and
  • Advertising on radio or television.

While DOL regulations leave the “3 out of 10” selection to the employer’s discretion, the complaints at issue specifically alleged that the company’s refusal to accept applications for PERM-related positions on its website similarly to the electronic applications that are accepted for other positions posted on its career website, “has deviated from its standard recruiting and hiring processes and instead followed various procedures designed to favor the holder of the temporary visa and deter American workers ”.

The regulations require that the company now refine its PERM recruiting practices by:

  • opening online application numbers for all PERM positions on its career site,
  • publish all PERM roles on the career website in the same way other roles are displayed and without referencing these roles are linked to a PERM process,
  • accept electronic submissions through its career website,
  • enter all applications submitted for PERM positions into its electronic recruitment database (which includes automated multi-domain search functionality), and
  • provide online functionality to allow applicants for PERM employment to apply electronically through the websites of state labor agencies (where such functionality is available).

The regulations set a new model for how employers should operate their PERM programs. Although DOL regulations do not require the placement of PERM ads on a company’s employment website, or impose any particular recruitment vehicles among the ten options, the further the company deviates from. its standard recruitment processes, the more vulnerable it is to scrutiny and, potentially, to penalties. .

In this environment of high needs and strict enforcement, what should American employers with legitimate sponsorship needs do?

Employers looking to mitigate risks in the PERM arena will need to check their programs for any clues of problems the tech company has been facing. An audit that assesses the following key factors will allow employers to take corrective action early or, hopefully, document the strength of their PERM compliance program.

In this regard, we have identified the ten main issues to validate:

  1. Are PERM job applications opened, listed and posted on the company’s career website in the same way as other non-PERM job postings?
  2. Do applicants for PERM positions have the option to submit applications electronically in the same way as other non-PERM vacancies?
  3. Are applications for PERM positions integrated and searchable in the company’s recruitment database and clearly mapped to the vacant position’s application number?
  4. Are regularly used recruiting vehicles, such as external job search engines, also used for PERM jobs, and has the company avoided using recruiting vehicles for PERM roles which are never (or rarely) used for other similar positions?
  5. Are PERM advertising texts aligned with the broader roles of the business, while incorporating only the minimum and special requirements allowed by DOL regulations?
  6. Do PERM recruitment records clearly document the type of selection that was made for US worker applications, and if so, does the selection incorporate a multi-level review process and include telephone interviews or in person similar to the way the company selects workers in real time? for non PERM cases?
  7. Is the volume of applications for PERM positions similar to the volume of applications for similar non-PERM positions?
  8. Has the company notified laid-off US workers of PERM job openings, in accordance with DOL’s guidelines for layoff notification?
  9. Has the company received any complaints, whether through internal sources or government agencies such as the Immigration and Employee Rights Section of the Department of Justice, regarding its PERM practices or other actions in favor of foreign workers?
  10. Does the company regularly train its recruiters and other hiring managers on the anti-discrimination provisions of U.S. immigration laws and PERM recruiting requirements?

Employers who verify and mitigate errors, including using and carefully reviewing available data analyzes, will be in a better position to advocate for challenges that may arise as a result of this settlement. The results of an audit are likely to reveal opportunities for improvement, mitigation or remediation. The appointment of a management group within the company responsible for overseeing and monitoring PERM recruitment, where the management group receives regular training on compliance from an external lawyer, is an important element. an updated program. Likewise, developing a policy indicating when PERM sponsorship will be offered and documenting how the company will proceed with PERM recruiting is essential.

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This article by Mayer Brown provides information and commentary on legal issues and developments of interest. The foregoing does not constitute a complete treatment of the matter at hand and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action on the matters discussed in this document.

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