As part of the PERM labor certification process, the employer is required to publish multiple advertisements and do the recruiting process to determine if there are any able, willing, available, and qualified U.S. workers for the position to be filled by the sponsor alien / beneficiary.
Even though the documentation of recruiting efforts is not to be submitted along with the PERM application, it must be retained for five years and must be made available if requested.
Professional or nonprofessional
If the occupation is on the list of occupations published in Appendix A of the final PERM regulation, the employer must recruit using the standards for professional occupations, which normally require a bachelor’s or higher degree. For all other occupations not normally requiring a bachelor’s or higher degree, employers can recruit under nonprofessional occupations requirements.
Although the occupation involved in a labor certification application may be a nonprofessional occupation, the regulations do not prohibit employers from conducting more recruitment than is specified for such occupations. Therefore, if the employer is uncertain whether an occupation is considered professional or not, the employer is advised to conduct recruitment for a professional occupation.
Job Posting
The employer must post the position as a job order on the State Workforce Agency (SWA) for at least 30 days. The start date and end date of the job order should be entered on the PERM application. It is recognized that states vary in their job order placement procedures, and that some may, in fact, place job orders on America’s Job Bank (AJB). In this case, as long as the employer is posting through the SWA, a job order placed on AJB would be sufficient.
The job position must also be posted in 2 Sunday editions of a large local newspaper consecutively. The newspaper should be of general circulation in the area of intended employment most appropriate to the occupation that able, willing, qualified, and available U.S. workers are likely to read and apply for the job opportunity. If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer may use the edition with the “widest circulation” in the area of intended employment. If a suburban newspaper has no Sunday edition, the employer must publish the Sunday advertisement in the most appropriate city newspaper that serves the suburban area. The employer should keep the copies of these newspaper advertisements as documentation of such recruitment efforts.
For professional jobs, as an alternative to 1 Sunday newspaper ad, an ad can be placed in a relevant professional journal, but it cannot be an online national professional journal. The employer should keep a copy of such advertisement as documentation of this recruitment effort.
Acceptable Publications
There is no published list of acceptable publications.
Most employers, based on their normal recruiting efforts, will readily be able to identify the newspapers (or journals for certain professional positions) that are most likely to bring responses from able, willing, qualified, and available U.S. workers. The employer must be able to document that the newspaper and/or journal chosen is the most appropriate to the occupation and the workers likely to apply for the job opportunity.
Professional Jobs – Additional Resources
Additionally, for professional occupations, at least three out of the following resources must be utilized for job posting:
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Job fairs
The employer should document this effort by preserving the brochures advertising the fair and advertisements in which the employer is named as a participant in the same.
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Employer’s website
Copies of web pages from the employer’s website should have saved to document the job advertisement.
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Job search website other than the
employer’s
Copies of web pages from these websites, such as indeed.com and monster.com should be saved as documentation.
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On-campus recruiting
Copies of the notification posted or issued by the university’s or college’s placement office naming the employer and the date it conducted interviews for the employer.
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Trade or professional organizations
Documentation should include the copies of pages of trade journals or newsletters containing job advertisements.
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Private employment firms
Documentation should demonstrate that a private firm has conducted recruitment for the given job, such as copies of contracts between the employer and the private employment firms and copies of advertisements placed by the private employment firm for the occupation.
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Employee referral program with incentives
Documentation can include copies of the employer handbook, notices, or memoranda with details of the program and its incentives.
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Campus placement offices
Copies of the employer’s notice for the job opportunity provided to the campus placement office.
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Local and ethnic newspapers
Copy of the newspaper that contains the employer’s advertisement.
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Radio and television
Copy of the text of the employer’s advertisement and a written confirmation from the radio or television station stating when the advertisement was aired. The employer should also retain the invoice provided by the radio or television station for the same.
Proper records of all payment receipts, online correspondence, and proof of the actual ads must be kept asproof of such advertisements, as listed above.
Only one of these additional steps may take place within 30 days of the filing of the PERM application. None of the above steps should have taken place more than 180 days prior to filing the PERM application.
Steps cannot be duplicated nor can one step be used to satisfy two requirements. For example, the employer cannot count two advertisements in a local and/or ethnic newspaper or two postings on a web site as two steps. Similarly, the employer cannot use a professional journal in lieu of a second Sunday newspaper advertisement and then count it again as an additional “trade or professional organizations” recruitment step or an additional “website other than the employer’s” step.
Advertisements in other media, such as on movie theater screens, screens in airports, sides of buses, or billboards, are not considered valid steps.
Recruitment Timeline
Recruitment must occur within 180 days before filing the application and must be completed within 30 days before filing the application.
The employer must wait 30 days after the end of the recruitment period before filing the PERM application. This would allow any qualified U.S. workers a reasonable time period to respond to the ads or job offer.
While the majority of the recruitment must take place within the 30 – 180-day timeframe, one of the three additional steps required for professional occupations may consist solely of activity which takes place within 30 days of filing. However, none of the steps may take place more than 180 days prior to filing the application.
The employer does not need to wait until it receives a prevailing wage determination before beginning recruitment. However, the employer must be aware that in its recruiting process, which includes providing a Notice of Filing stating the rate of pay, the employer is not permitted to offer a wage rate lower than the prevailing wage rate. Similarly, during the recruitment process, the employer may not make an offer lower than the prevailing wage to a U.S. worker.
Advertisement Requirements
Advertisements in the newspaper and/or professional journal must include the following information:
- Employer name;
- Job title and/or a brief job description;
- Geographic area of the employer specific enough for the prospective employees to estimate commute requirements;
- Offer of at least the prevailing wage rate;
- No job requirements or duties that exceed what is on the PERM application form;
- No wages or terms and conditions of employment that are less favorable than those offered to the beneficiary / alien worker;
- Direct applicants to send the resume;
If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist in tracking applicants for the job opportunity.
The employer’s physical address does not need to be included in the advertisement. Employers may designate a central office or post office box to receive resumes from applicants, provided the advertisement makes it clear where the work will be performed.
The offered wage does not need to be included in the advertisement, but if a wage rate is included, it cannot be lower than the prevailing wage rate.
Recruitment Report
The employer should prepare a recruitment report that describes
- the recruitment steps undertaken and the results achieved
- the number of hires, if applicable
- the number of U.S. workers rejected, categorized by the lawful job-related reasons, and number of U.S. applicants in each category.
The above report must be signed by the employer or their representative.
As long as U.S. workers can acquire the skills necessary to perform the job duties in a given occupation during a reasonable period of on-the-job training, they are considered able and qualified. Rejecting them for the lack of already possessing such skills is not a lawful reason for rejection of U.S. workers.
The report does not have to identify individual U.S. workers that applied for the job opportunity; however, in case of an audit, this information may be required.
Layoffs
If the employer had laid off any U.S. workers in the same or similar occupation and geographic area of intended employment, the employer must notify all potentially qualified laid-off U.S. workers of the job opportunity and document the results of the notification and consideration. A related occupation is any occupation that requires workers to perform a majority of the essential duties of the occupation for which a labor certification is being applied.
Multiple Positions
An advertisement for multiple positions may be used as long as all provisions in § 656.17(f), advertising requirements, have been met.
While employers have the option to place broadly-written advertisements with few details regarding job duties and requirements, employers must prepare a recruitment report that addresses all minimally qualified applicants for the job opportunity. If an employer places a generic advertisement, the employer may receive a large volume of applicants, all of whom must be addressed in the recruitment report. Employers placing general advertisements may wish to include a job identification code or other information to assist the employer in tracking applicants to the specific job opportunity.
