本文简单的介绍PERM的步骤，主要在探讨如何拒绝U.S. Worker的申请。因为愈来愈多
的PERM Audit，所面临的问题大多是在于 Recruitment Result Statement 上。
BRIEF FACTS OF THE CASE:
In the instant case, an Employer, a plumbing and compacting installation
service, filed a labor certification for a plumber. He rejected two
qualified US applicants without giving them an interview prior to denying
their applications. The reasons the Employer gave for rejection were that
Applicant 1, did not specify whether he had US-based plumbing experience as
a plumber and that the Applicant 2, was overqualified and he supervised
other plumbers and apparently would have not accepted an inferior job as a
raw plumber.
In the final determination the CO (Certifying Officer) stated that Applicant
1 provided plumbing services in his capacity as a self-employment home
improvement contractor. With regard to Applicant 2, the CO stated that it is
unlawful ground to reject an applicant based on the Employer’s finding
that the applicant is overqualified. BALCA upheld the denial of the
application of the Employer on the grounds that “familiarity with New York
plumbing codes was not specified on the ETA 750A as a job requirement but
only as a job duty. Furthermore, knowledge of applicable plumbing codes is
not essential for the type of information that a person applying for a
plumbing job would specifically list in a resume.” Furthermore, an employer
should not make a statement that an applicant who is overqualified will not
accept a lower job.
Subsequently, the Employer sought review of the CO’s Final Determination.
With regard to Applicant 1, the Employer observed that the resume did not
indicate that the Applicant had any knowledge of New York plumbing code- no
license, no course attended, no job as a plumber. In case of Applicant 2,
the Employer stated that this Applicant has not been rejected as an
overqualified candidate but rejected for not having recent experience in
performing all the raw duties of a plumber.
Alien labor certification is a very serious matter and each case should be
decided on its merits, in accordance with the Act and regulations.
In no case should an alien be granted permanent work status in this country
on the basis of a procedural error in the certification process.
An employer must show that U.S applicant was rejected solely for lawful job-
related reasons. 20 C.F.R. 656.21 (b) (6). Furthermore,
the job opportunity must have been open to any qualified U.S. worker. 20 C.F
.R. 656.20 (c) (8). Therefore, an Employer must take steps to
ensure that it has obtained lawful job-related reasons for rejecting U.S.
applicants, and not stop short of fully investigating an applicant’s
qualifications.
RECRUITING EFFORTS TAKEN BY THE EMPLOYER:
Under PERM regulations, the employer is required to organize a broad range
of appropriate recruitment before proceeding with the filing of ETA 9089.
The employer has the obligation to maintain the recruitment file relating to
all the efforts undertaken in connection with the PERM case. Only the ETA
9089 is submitted to the DOL; however, the recruitment file must be
maintained by the employer as well as by the attorney to avoid problems.
Recruitment file will be a vital document to respond, if the DOL decides to
audit the employer’s PERM case.
An employer has to wait for the actual determination of the prevailing wage,
so that the potential applicant can be made aware of the wages being
offered, even though the employer had began the recruitment process. The
recruitment efforts must include the following:
· Consecutive Sunday’s newspaper advertisements edition, which is
generally circulated. The advertisements must not contain the wage details
offered; but, if the wage is mentioned in the advertisement, it must be not
lower than the prevailing wage. The advertisements details are mentioned
below:
1. Contain the name of the employer
2. Direct applicants to report to, or send resumes to, the employer (
depending on what is appropriate for the occupation)
3. Provide a job description specific enough to apprise U.S. workers of
the job opportunity
4. Indicate the geographic location of the job opportunity clearly enough
to permit applicants to understand the relative commuting distance.
· A 30-day job listing with the State Job Bank Office
· An in-house Notice of Filing of Application for Alien Employment
Certification posted for 10 consecutive business days (this can be waived in
the case of a domestic service worker, unless there are U.S. workers also
employed in the home)
In case of professional occupations, the employer must publish a notice of
the position in any and all in-house media generally used by the employer in
announcing job opportunities. Additionally, the employer must complete 3
out of the following 10 recruitment efforts:
1. Job fairs
2. Employer’s website
3. Job search web site other than employer’s
4. On-campus recruiting
5. Trade or professional organizations
6. Private employment firms
7. Employee referral program, if it includes identifiable incentives
8. Notice of job opportunity at campus placement office (if job does not
require experience)
9. Local and ethnic newspapers (if appropriate)
10. Radio and television ads
An Employer must complete the recruitment process within 30 to 180 day
period before the filing of the PERM application. In simple words, the
employer completes the recruitment efforts, and then waits for a 30-day “
quite time” before submitting the PERM application; no recruitment effort
can be more than 180 days old when the PERM application is filed. However,
in professional cases, the PERM regulations do allow for one of the above 10
additional recruitment efforts to be conducted during that final 30-day
time frame prior to filing the PERM application.
An employer should maintain all the documentation of the recruitment efforts
, its results in the recruitment file. The recruitment file should contain
all the documentation, such as business necessity statement, in support of
the PERM application, and must be kept for 5 years after the filing of the
PERM application.
SOME OF THE GROUNDS FOR REJECTING AN APPLICANT:
As a sponsor, it is the employer’s responsibility to review and consider
the qualifications of any U.S. worker who might apply for the position. The
employer must consider and interview U.S. workers whose resumes show them to
be potentially qualified for the job position, because the regulations
forbid the foreign national and the attorney from participating in the
consideration of applicants. The employer may reject U.S. workers only for
lawful, job-related reasons. If a United States worker is qualified and
willing to work offered, and if the employer has another opening for the
same job and mentioned it in the recruitment efforts, then the worker can be
hired for that other opening which causes no problem. And if there is no
other opening available at that time, the qualified worker does not
necessarily have to be hired, but if this happens, then the PERM application
should not be submitted, since the test of the labor market has failed. The
résumés should be maintained in the recruitment file. There are several
lawful, job-related reasons for rejecting U.S. workers. These include:
· The U.S. applicants' failure to meet the minimum requirements
stated in the Labor Certification Application. Hence, while preparing Labor
Certification Application must be properly worded with all appropriate
requirements stating in it.
· The U.S. applicants' failure to pass a performance test. (If a
requirement is specified in the labor certification application and the
applicant being petitioned in the labor certification process took the test,
and passed that performance test).
· The U.S. applicant's failure to document his/her experience i.e.
overstated their credentials on their resume.
· Poor or unverifiable job references (i.e. previous employer gives
them a poor recommendation).
· U.S. applicant does not have current knowledge or expertise in the
job field.
· U.S. applicant's failure to respond to the employer's letter.
· U.S. applicant is not interested in the job or the wage.
Accordingly, one point must be considered here is that if the applicant’s
resume specifies a higher wage than that being offered, the U.S applicant
must still be offered the wage specified on the Labor Certification
Application, and be given the opportunity to reject or refuse to accept that
wage.
· Failure to attend a scheduled interview.
At the conclusion of the recruitment efforts, the employer must sign a
recruitment report; that report is kept in the recruitment file and contain
the following:
· A description of the recruitment steps taken
· The results achieved
· The number of hires
· The number of U.S workers rejected, categorized by lawful job
related reasons for their rejection. Although there is no requirement that
the report identify the U.S, workers by name, it might be cautious to do so,
since this may make things easier in the event of an audit.
SOME IMPERMISSIBLE REASONS FOR REJECTING A U.S WORKER:
While U.S. applicants can be rejected for lawful, job related reasons, they
cannot be rejected at the whim or fancy of the employer. Some unlawful or
impermissible grounds for rejecting U.S. workers include:
· Rejecting U.S. workers based on requirements not stated in the
Labor Certification Application.
· U.S. applicant is over-qualified. For example, if the job offer
requires only a Bachelor's Degree and the U.S. applicant has a Master's
Degree; the U.S. applicant must still be considered.
· The employer's mere suspicion that the job might not fit with the
U.S. applicant's long-term career goals, and/or that the job is merely a
stepping stone to other employment. If an applicant is to be rejected
because he or she is not interested in the position, this must be fully
documented.
· The alien is more qualified than the U.S. applicant. If the U.S.
applicant meets the employer's minimum requirements, than the U.S. applicant
cannot be lawfully rejected simply because the alien is more qualified.
· Diverting qualified U.S. applicants to other job positions, in
order to enable the employer to hire the alien for the position being
offered.
· Employer's suspicion that the U.S. worker is "unreliable", because
he/she has a history of moving from job to job, would have commuting
problems, was not "trustworthy", had a "bad attitude", and the like. If the
employer has these suspicions, they would have to be fully documented
through discussions with previous employers, if any.
The day that the PERM application is successfully filed with DOL (either
electronically of by mailed copy), it becomes the foreign national’s “
priority date”, which gives effect to the applicant a place on the waiting
list of those persons born in the foreign national’s home country who are
trying to emigrated to the United States. Current DOL policy prohibits any
type of modification of the PERM application once it has been submitted to
the DOL.
BALCA’S DECISION:
In the instant case, BALCA affirms denial of labor certification, finding
that the two Applicants were improperly rejected by the Employer. The
Applicants raised a reasonable prospect that they were capable of performing
the job offered to them, thus the Employer had a duty to interview these
Applicants or verify their qualifications in some manner other than just
making assumptions based on their resumes.
本文由范毅禹律师事务所提供
本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，
劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处
理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢
迎读者流览查询。
www.fan-law.com (Chinese)
www.fanuslaw.com (English)
CALIFORNIA : Fan, Fitzpatrick & Thompson, LLP.
370 E. Glenarm St., Pasadena , CA 91106
Tel: 626-799-3999 Fax: 626-799-9966
MARYLAND : Fan, Fitzpatrick & Thompson, LLP.
230 North Washington Street, Suite 400 , Rockville , MD 20850
Tel: 301-251-2636 Fax: 301-251-0313
|
