By David Wang, Attorney at Law | Wang Law LLC | Immigration & Employment Practice
The PERM labor certification process is one of the most highly regulated components of U.S. employment-based immigration. Before sponsoring a foreign national for an EB-2 or EB-3 green card, the employer must demonstrate to the U.S. Department of Labor (DOL) that no able, willing, qualified, and available U.S. workers are ready to fill the offered position.
This article explains, from an attorney’s standpoint, the essential legal duties that employers must follow during the PERM recruitment process. These requirements are frequently misunderstood, and non-compliance is one of the most common reasons for audits, denials, and supervised recruitment.
1. Mandatory Use of the Applicant Assessment Sheet
Employers must evaluate every resume and job application received in response to the PERM advertisements using a standardized Applicant Assessment Sheet. This form documents:
- Whether the applicant meets the minimum job requirements
- Any missing qualifications
- Lawful reasons for rejection
- Consistency of review across all applicants
DOL expects employers to maintain objective, contemporaneous documentation. A failure to record specific reasons for rejection may lead to a finding that the recruitment was incomplete or biased.
2. Five-Year Recordkeeping Requirement
All recruitment documentation must be retained for five years from the date of filing the ETA-9089. This includes:
- All resumes and cover letters
- The completed assessment sheets
- Proof of advertising
- Internal recruitment notes
- Emails and screening logs
Even if a resume was submitted by mistake, or clearly does not meet the minimum requirements, the employer must still keep it for five years. DOL may request this file during an audit at any time within the retention period.
3. Strict Standards for Rejecting Applicants
Under PERM regulations, an employer may only reject an applicant for lawful, job-related reasons. Those reasons must be tied to the minimum requirements stated in the job order and recruitment advertisements. Examples of compliant rejection reasons:
✔ “Applicant lacks the required Juris Doctor degree.”
✔ “Applicant does not possess the required California Bar License.”
✔ “Applicant does not meet the stated requirement of travel availability.”
Examples of non-compliant reasons:
✘ “Applicant does not seem like a good fit.”
✘ “Employer prefers someone with more experience (not stated in ad).”
✘ “Applicant requires visa sponsorship.” — visa status is not a lawful basis to reject a U.S. worker.
4. Who Is Considered a “U.S. Worker”? Legal Definition Matters
Employers are legally obligated to consider the qualifications of U.S. workers, defined strictly by the Department of Labor, A “U.S. worker” includes only:
- U.S. citizens
- Lawful permanent residents (green card holders)
- Refugees
- Asylees
These individuals must be properly screened, and their resumes must be evaluated using the assessment sheet.
5. Who Does Not Need to Be Considered
Individuals with temporary or nonimmigrant status are not considered U.S. workers, even if they currently hold valid work authorization. This includes:
- H-1B / H-4
- L-1 / L-2
- O-1
- F-1, including OPT and STEM OPT
- J-1 / J-2
- TN / E-3
- Any form of temporary work permit
- Individuals without legal status
As a result, the employer is not required to consider these applicants during recruitment.
This principle is often misunderstood. The fact that an applicant has been living or working in the United States for many years does not mean they are authorized for permanent employment — which is the standard DOL evaluates.
6. Permissible Interview Questions: What Employers May and May Not Ask
Employers may not ask if an applicant is a U.S. citizen. However, employers may ask:
- “Are you legally authorized to work permanently in the United States?”
- “Will you require visa sponsorship now or in the future?”
These questions are essential for documenting the distinction between U.S. workers and non-U.S. workers.
7. Placement Agencies and Fee-Charging Recruiters
If resumes come from a placement agency that charges a fee to the applicant, the employer may reject those resumes unless the employer itself engaged that agency. This rule is designed to ensure fairness and prevent exploitation during recruitment.
8. Why Compliance Matters: Legal Risks of Non-Adherence
Failure to follow the above requirements may result in:
- PERM denial
- Audit or supervised recruitment
- Substantial delays in the green card process
- Potential findings of discriminatory or restrictive hiring practices
A single misstep—such as failing to document rejection reasons or discarding resumes too early—can invalidate the entire PERM process.
Conclusion
PERM recruitment is not simply a hiring exercise; it is a regulated process governed by complex federal requirements. Employers must carefully document every step, follow uniform evaluation standards, and understand which applicants qualify as “U.S. workers” under the law.
For employers, HR departments, and multinational companies, working closely with an immigration attorney is essential to ensuring full compliance and avoiding costly delays.
About the Author
David Wang, Esq.
Immigration & Employment Attorney
Wang Law LLC — Chicago
www.wanglaw.com
Email: info@wanglaw.com
Phone: (312) 519-1115