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

space.

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

employers.

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

of 1986.

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

forth.

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.

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