This summer, a major controversy arose when Cohen & Grigsby, a Pittsburgh law firm, posted a videotaped seminar about the PERM labor certification process on the Internet. To some people, the video seemed to describe how to exploit loopholes in the application process. To others, it described legitimate strategies for success.

When many people and advocacy groups reacted with shock and outrage, the firm quickly took the video down (although an edited version still remains on the video-sharing website YouTube). Over the next few weeks, the video prompted many people to question the labor certification process and whether it really prevents the displacement of American workers.

PERM’s Legal Requirements

The labor certification process is the first step for many employment-based immigration cases. Most EB-2 and EB-3 cases require an approved labor certification application before the employer can file an immigration petition.

The purpose of the labor certification process is to provide a balanced test of the labor market. The labor certification process benefits U.S. workers by ensuring that no U.S. worker is being denied a job when an employer seeks permanent residence for one of its foreign workers. It gives employers access to unique resources they cannot find elsewhere, and it allows foreign workers to go where their skills and talent are in the highest demand. Thus, the labor certification process has benefits for all parties involved.

The Department of Labor implemented the new Program Electronic Review Management (PERM) labor certification process in March 2005. These are the main requirements for employers filing PERM applications:

1. The position in question must be a bona fide, full-time, permanent job offer located in the United States.
2. The position must be paid the prevailing wage for that profession and location.
3. Hiring an alien for the job must not adversely affect U.S. workers (e.g., by lowering standards for working conditions).
4. There must be no qualified U.S. worker available to accept the job offer through the recruitment process.

It’s worth noting that under the old labor certification system, employers submitted evidence of their adherence to these requirements along with the main application. Under PERM, however, an employer submits these documents only if its application is chosen for an audit.

The PERM Recruitment Process

Employers who file PERM applications must go through a recruitment process to ensure that no available U.S. worker could replace the alien in question. The employer must perform these recruitment activities within 180 days of filing the application, and they must finish the activities at least 30 days before filing.

Basically, the employer has to advertise the position in a widely circulated newspaper or professional journal, place a job order within the state job order system, and post the job internally. If the position requires a bachelor’s degree or higher, the employer also has to conduct at least three other recruitment activities, which range from posting the position on the employer’s website or an independent job-search website to using an employee referral program.

There are more detailed rules about each of these activities—including how long the advertisements must be shown and what the appropriate venues are—but those are the basic requirements.

There are also specific rules about what the actual minimum requirements of the job should be. These requirements are designed to prevent an employer from favoring a foreign worker by creating unduly restrictive minimum requirements.

Essentially, the employer can require only what is justified by “business necessity”—that is, only what is required for the duties of the position. PERM applications use a standardized set of job requirements. Employers that want to exceed those requirements must be able to document that their extra requirements arise from business necessity.

Objectives and Design Flaws of the Recruitment Process

The videotaped seminar posted by Cohen & Grigsby attracted a lot of attention because it taught employers how to legally go through the PERM recruitment process without finding a qualified U.S. worker. Perhaps the most quoted line from the video is Attorney Lawrence Lebowitz’s statement that “[their] goal is clearly not to find a qualified and interested U.S. worker.” Lebowitz added after saying that, “In a sense, that sounds funny, but it’s what we’re trying to do here.”

Lebowitz’s words escalated an already heated debate about immigration. CNN journalist Lou Dobbs and advocacy groups like the Programmers’ Guild expressed their anger and frustration that this measure was apparently not doing its job of protecting American workers. They conflated this issue with the H-1B visa debate and painted a picture of cheap foreign labor putting Americans out of work, epitomized by Dobbs’s recurring slogan, “War on the Middle Class.”

Despite this slight confusion of the issue by the media, the widespread coverage of the Cohen & Grigsby seminar did create legitimate concerns about the recruitment process. If nothing else, the seminar showed that many U.S. employers enter the recruitment process with the specific objective of failure—and calls into question whether the requirements of the process make it difficult enough for them to reach that goal. For example, despite the Department of Labor’s rules about what the actual minimum qualifications for a PERM position can be, the Cohen & Grigsby video shows that employers can still disqualify many of the American applicants, perhaps more than some people think they should.

Still, it’s possible that the public misunderstands what the recruitment process is for. The PERM process is really meant to test the job market, not to recruit someone for that specific position. Even if an employer does find a qualified U.S. worker for a particular position, the employer does not have to hire that worker. So U.S. workers are not necessarily being displaced when a labor certification application is approved

The flaw in the process is that the employer often has a conflict of interest and does not perform the test objectively. This conflict of interest creates biased results, which oppose the goal of the labor certification process.

Employer Liability in the Recruitment Process

The purpose of PERM is to encourage employers to hire qualified U.S. workers. However, some people may perceive from the Cohen & Grigsby video that employers are discriminating against U.S. workers and preferring foreign workers instead.

The PERM recruitment process can put employers in a delicate position if a qualified and willing U.S. worker applies for the job. The employer is required to conduct the recruitment process in good faith to test the job market. However, if a qualified U.S. worker is available and willing to take the job, the employer does not have to recruit him or her under the PERM rules. Ideally, the employer will hire the qualified U.S. worker and still have a position open for the alien worker. But that doesn’t always happen.

The problem is that if the employer chooses not to hire the U.S. worker, the U.S. worker can sue the employer—since he or she applied for a job that was offered in apparent good faith. This possibility might push employers toward disqualifying as many job applicants as they can in an effort to avoid lawsuits.

We hope our discussion of this issue helps our clients understand general attitudes in the United States about employment and immigration, and the stakes that are involved when these issues are debated. Americans are concerned that the U.S. government’s protective measures are not working. The Cohen & Grigsby video suggests that there are ways to sway the results of the labor certification process, despite rules about recruitment and unduly restrictive job requirements.

However, it’s important to keep in mind that Cohen & Grigsby’s tactics are entirely legal. A spokesperson for the firm reminded the public of this fact, while also expressing some regret for the video’s “ill-chosen language.”

The fundamental issue here comes from the different interests of each group. Employers want to retain their current employees, since they often consider that person the best possible candidate for the position. American workers, represented by the Department of Labor, want protection from displacement by foreign workers.

As an immigration law firm, Zhang & Associates acts in our clients’ best interests. We want to achieve the best possible results for our clients who are going through the PERM application process. But we also think it’s important to explore these issues and ask questions about them. We hope that by examining different opinions and points of view, we can help our clients improve their understanding of the legal issues involved and move through the labor certification process more smoothly.