Our last article in this series on PERM processing in a pandemic
world dealt with layoffs. This article warns of the dangers of
Prior to the enactment of the PERM Rule in 2005, employers had
two paths for alien labor certification — regular processing and
reduction in recruitment (RIR).
Regular processing involved intense scrutiny at the State and
Federal levels and resulted in long delays of up to five years or
more in some busy states like New York and California.
When RIR was introduced employers were able to recruit for US
workers up front, before contacting the U.S. Department of Labor
(DOL), and recruitment reports were transmitted relatively quickly
for review. However, the burden was on the employer each time to
explain why a cursory review by DOL should be enough, and DOL could
grant or deny RIR as a matter of discretion. When DOL chose to deny
RIR, it would instruct employers to conduct a second, often
expensive, advertising campaign and recruitment of US workers under
close supervision. Denial rates were higher for cases entering
regular recruitment rather than the RIR fast track.
To carry the RIR program a step further, DOL introduced PERM, a
new, electronic review of application based on the RIR model. PERM
would eliminate delays but DOL maintained discretionary authority
to select out cases for quality control. These cases would then be
subject to an order of strict oversight — hence the term
To explain the selection process, the Atlanta Processing Center
provided some specific guidance on their criteria, including
applications for jobs in the trades, employment in public
schools, applications requiring degrees but no experience,
resubmission of denied applications, and applications filed by mail
instead of by electronic transmittal. However, the criteria may be
best understood as being based on two central issues: a
general perception that, despite assertions by employers of
unavailability, qualified workers should be available, or upon a
suspicion that the PERM application does not demonstrate bona fide
efforts to find qualified or trainable US workers.
When supervised recruitment is ordered, employers must conduct
searches for qualified workers using additional, extensive rounds
of advertising in media selected by DOL. Resumes are directed to
the DOL which monitors all communications between employers and US
workers. Deadlines are strictly enforced, and applications must be
completed with mathematical certainty!
As record unemployment is now a reality in the US, supervised
recruitment should become more common and must be viewed as an
obstacle course with special challenges. As mere opinions or
conclusory statements by HR will not suffice, employers must
painstakingly provide substantial documentation for rejection of US
workers who, although not technically qualified, may be trained or
considered qualified based on alternate combinations of education,
training, or experience.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.