Employers who seek labor certification to employ foreign workers
must prove that they have not found suitable US workers who are
qualified, willing, able and/or available. Somewhere in the cosmos,
there must be somebody, but US workers are not
extraterrestrials to be found somewhere in the far reaches of outer
It's not rocket science, either. The law has devised a
down-to-earth method to search using familiar forms of advertising.
For most jobs, workers may be found through the state workforce
agencies, which maintain databanks of local workers who may be
looking for the exact job offered by an employer, ads placed in two
Sunday newspapers, and notices posted at the employer's place
of business or through in-house media. For professional positions
(defined by a list of occupations maintained by the Department of
Labor), three additional forms of recruitment are necessary.
When workers appear on the horizon, they must file applications
according to the instructions of the employer. This may be by
sending resumes by mail, email or fax, or even by applying
electronically at the employer's website.
Difficulties arise about how to differentiate between job
referrals and job applicants. Referrals are persons whose
names may be matched on state job service sites, or whose names may
appear on lists of potentially available workers, while applicants
are persons who step forward to apply for job opportunities in
response to advertisements with instructions provided by
In the PERM program, workers may be referred to employers
whether they are authorized to work or not. This arises from the
fact that verification of work authorization is not necessarily
included in the dossiers of the State Workforce Agencies or other
sources of recruitment.
A government program known is E-Verify, intended to maintain
work authorization status for everyone in the United States, is
controversial because it does not meet the stated objective to
provide safe, reliable information about all job applicants.
E-Verify is available in some, but not all, states, but even in
those states where it is in place, workers are only E-verified if
they appear personally at the agency. Those who apply on-line are
not verified at all.
Even if workers are verified according to E-Verify, they may not
meet the definition of U.S. workers as defined in the PERM labor
certification program. Since PERM is a program to find
permanent, full-time employees, U.S. workers are limited to persons
with permanent, full-time work authorization. Specifically,
these can only be American citizens, permanent resident aliens, US
Nationals, Asylees, Refugees, and certain foreigners who may have
qualified for amnesty under the Immigration Reform and Control Act
Employers are usually reticent to ask workers directly if they
have permanent employment authorization, because under E-Verify and
employer-based verification using Form I-9, employers cannot
discriminate against workers who have temporary and permanent work
authorization. The same agency that requires detailed verification
of each worker also prohibits misuse of the system to prejudice
individuals because of race, religion, national origin and so
The Department of Labor often denies PERM applications after
issuing a determination that the employer failed to explain why the
U.S. workers who applied were lawfully rejected. The denials
are fair in those instances when the workers were indeed U.S.
workers as defined in the PERM Rule, but not fair when the workers
were persons with temporary work visas or even with no work
authorization at all.
Little attention has been given to this discrepancy in the PERM
Rule. Large employers often use other techniques to ferret out
persons who are not defined by PERM as U.S. workers. One
method is to place special language in the advertisement about
whether job applicants need sponsorship. This only identifies
persons who answer affirmatively because they would like the
employer to sponsor them for permanent residency status and,
therefore, to work full-time and permanently in the U.S.
According to USCIS policy, employers fear asking workers to
prove their work authorized status, whether temporary or permanent,
until after they have been hired and have reported to work.
This sometimes lead to the embarrassing situation that workers must
be terminated during the first day of employment when it is
discovered that they are not properly documented.
The work authorization verification program was created in 1986.
Prior to that time, anyone could work as a natural right, including
persons in unlawful status. In recent years, however, the issue of
documentation and the right to work has commanded front page
attention. In a nation of immigrants, the country struggles to
determine which persons should be permitted to remain and which
persons should be removed to the place from whence they came
– even as local labor shortages exist in many sectors of the
economy and in every part of the country.
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.