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Cora-Ann Pestaina, Apr. 24, 2017 - "The employer’s review of resumes received from applicants continues to be one of the trickiest issues in the PERM labor certification process. The process might seem straightforward enough because, after all, employers filing PERM applications are likely quite used to evaluating resumes from applicants. But such thinking is probably where the first wrong step is taken. I last blogged on this issue on December 2012 and my blog entitled, Resume Review in the PERM Process is still very relevant. However, I find that this issue continues to be a problematic one and worthy of a follow up. Improper resume review continues to be one of the Department of Labor’s (DOL) most popular reasons for PERM denials.
By way of background, under the Immigration and Nationality Act, the DOL has a statutory responsibility to ensure that no foreign worker is admitted for permanent residence based upon an offer of employment absent a finding that there are not sufficient U.S. workers who are able, willing, qualified and available for the work to be undertaken and that the admission of such worker will not adversely affect the wages and working conditions of U.S. workers similarly employed. INA §212(a)(5)(A)(i). The DOL fulfills this responsibility by determining the availability of qualified U.S. workers before approving a permanent labor certification application and by ensuring that U.S. workers are fairly considered for all job opportunities that are the subject of a permanent labor certification application. Accordingly, the DOL relies on employers who file labor certification applications to recruit and consider U.S. workers in good faith. Under 20 C.F.R. §656.10(c), the employer must certify that U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons. While the DOL has indicated that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process, operating under this belief will most likely lead to problems. I have always found that it is infinitely more effective to counsel the employer not to consider PERM as resembling any type of real world recruitment process whatsoever.
Review of the Board of Alien Labor Certification Appeals (BALCA) is a good place to stay up to date on the DOL’s reasoning on any PERM issue. Based on recent BALCA decisions, here are 7 points regarding resume review that are worth discussing with the employer at the outset of the PERM process, even before the job duties and requirements are finalized and the advertisement is drafted. ..."