December 2024 PERM Tip #1: There Are No Standards for Disqualifying Non-US Workers

BIB Daily presents bimonthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com.

For PERM applications involving a highly technical job opportunity it is becoming increasingly commonplace for the applicant pool to include a significant number of non-U.S. workers, e.g., applicants who are in the United States in a temporary nonimmigrant status such as H-1B or F-1.  The PERM regulations include specific standards for disqualifying US worker applicants.  However, non-U.S. worker applicants are not covered by such requirements.  As acknowledged by BALCA in Matter of SAP Labs LLP, the PERM regulations governing the content of the recruitment report at 20 CFR 656.17(g) do not specify any requirements for documenting non-U.S. worker applicants or how an employer made the determination that they were non-U.S. applicants.

In response to an audit request in SAP Labs LLP the employer provided the applicant resumes together with its determination that they were not US workers but did not explain the basis for that determination.  The Certifying Officer denied certification questioning how the employer was able to determine that the disqualified applicants were not US workers.  On reconsideration the employer provided an affidavit describing its practice of simply asking each applicant to “specify whether they are legally authorized to work in the United States and whether they will require sponsorship for a U.S. employment visa.” The Certifying Officer affirmed the denial but BALCA concluded that “the regulations impose no particular responsibilities on employers with regard to documenting the determination of the legal status of applicants. Moreover, this issue is not addressed in any FAQ or in the audit letter. . . . The Employer had, however, described how it determined the applicants' legal status — it asked them.”

For further information, see: Ron Wada, “Shaping the Future of PERM – BALCA Highlights 1Q 2019,” 24 Bender’s Immigr. Bull. 545 (May 15, 2019); Matter of SAP Labs LLP, 2019 BALCA LEXIS 83 (BALCA Feb. 26, 2019).