Documenting Recruitment Steps under PERM Posted Mar 25, 2005 ©MurthyDotCom Unlike the current labor certification process, the supporting documentation proving the completion of required advertising is not submitted with the online PERM labor certification application, Form ETA 9089. The Certifying Officer (CO) at the U.S. Department of Labor (DOL) may, however, audit the case before its approval. In that event, the employer will need to provide the supporting documentation requested by the CO. This likely will include a request for evidence that recruitment steps were completed before the Form ETA 9089 application was filed. In this article, we identify the proof or evidence that may need to be submitted to the DOL in the event of an audit. ©MurthyDotCom Universal Requirements ©MurthyDotCom Job orders and two Sunday newspaper advertisements are required before any PERM labor certification is filed. ©MurthyDotCom Job Orders ©MurthyDotCom Job orders are placed through the State Workforce Agencies (SWA). SWAs are not required to have a uniform job order form. Some SWAs have an online job order system, while others do not. Regardless of the method the SWA uses, the employer should print out any documentation that proves the job order was placed for the required 30-day period. ©MurthyDotCom Advertisements in Newspapers or Professional Journals ©MurthyDotCom Most positions require advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. In those areas with multiple newspapers of general circulation, the employer is required to utilize the one that is most appropriate for the occupation and the job seekers most likely to apply for the position. These newspaper advertisements may be documented by "tear sheets." Tear sheets are pages provided by the newspaper that prove that the advertisement was placed. A tear sheet is typically a copy of the exact page of the publication in which the advertisement ran. If the newspaper does not provide tear sheets, the employer may also make an exact copy of the page in which the advertisement ran. It is a good idea to retain proof of payment for the advertisement, as well. ©MurthyDotCom If the job is in a rural area where there is no Sunday edition of the newspaper, the employer is permitted to use the newspaper in the area with the widest circulation in the area of intended employment. In addition to keeping the tear sheet, the employer may wish to keep proof that there are no appropriate papers with Sunday editions and that the newspaper selected does have the widest circulation. ©MurthyDotCom If the job is for a professional position that requires an advanced degree and experience, the second ad may be in a professional journal that is most likely to bring responses from able, willing, qualified, available U.S. workers. Proof that a journal ad ran may be a tear sheet or other exact copy of the page in the journal in which the advertisement appeared. ©MurthyDotCom All proof of print ads should include the name of the publication in which the ad appeared. It should also include the exact date the ad appeared, if the ad is in a newspaper, or the edition in which the ad appeared, if it is a journal. If a journal has editions such as "Winter 2005," it is a good idea to get details from the journal showing when the edition is first made available to subscribers and when the next edition is to be issued. ©MurthyDotCom Professional Recruitment Requirements ©MurthyDotCom The PERM regulations require that employers conduct at least three out of a possible ten additional forms of recruitment if the position the employer seeks to fill with the labor certification is for a professional position. The DOL has indicated that employers cannot generally use the same type of recruitment twice to satisfy the 3-out-of-10 requirement. If an employer is unsure whether a position is a professional position or a nonprofessional position, it is generally a good idea to assume that it is a professional position and conduct the additional forms of recruitment. ©MurthyDotCom Job Fairs : Job fairs are by a variety of organizations. If an employer is participating in a job fair, it should be a job fair that it is likely applicants for the job offered will attend. For example, if the employer is seeking to fill a computer professional job, the employer generally should not assume that participating in a health care professional job fair would be adequate to satisfy this requirement. The DOL has stated that brochures advertising the fair and newspaper advertisements naming the employer as a participant are sufficient evidence of participation. An especially prudent employer may also want to take pictures of the booth at the job fair. ©MurthyDotCom Employer Website : If the employer usually advertises open positions on its website, this is an excellent, cost-efficient tool available for recruitment. The employer should print a copy of the website advertisement, including a date stamp, on the first day of advertising, and another copy on the last day of advertising the position, at least. An especially prudent employer may wish to print the ad, with a date stamp, every day that it appears on the website. The DOL has not established a minimum number of days that the advertisement must be available on the employer website. To try to avoid questions of good faith and sufficiency, however, employers may want to analyze this from the perspective of the normal business practice they would follow if conducting recruitment unrelated to an immigration case. It is advisable, certainly, not to merely put the advertisement up for a very brief period, as the CO may determine during an audit that the advertisement was not sufficient and perhaps even find that the recruitment was not in good faith. ©MurthyDotCom Other Job-Search WebSites : As with the employer's website evidence, the employer should print a copy of the website advertisement, with a date stamp, on the first day of advertising, and another copy at least on the last day of advertising the position. If the newspaper that runs the Sunday advertisement provides a website advertisement in conjunction with the newspaper advertisement, as some do, it is permissible to use that website advertisement as documentation of job search website recruitment. ©MurthyDotCom On-Campus Recruiting : The employer can prove on-campus recruitment efforts by providing copies of the notification issued or posted by a college or university placement office. The notice should include the employer's name and the date/s interviews are conducted. It is questionable whether recruiting on-campus will be considered sufficient if the job requires much, if any, experience. Further, if the job is in one state (e.g. Iowa), the employer would need to satisfactorily explain the decision to conduct college recruitment in another state, (e.g. Hawaii). If the reason is not plausible, the CO may require supervised recruitment and/or deny the case with a finding that the recruitment was not in good faith. Of course, many recent graduates are flexible about relocation and larger, national employers often do recruit throughout the country at schools with programs likely to produce desirable job candidates. ©MurthyDotCom Trade or Professional Organizations : The employer may document this method of recruitment with a copy of the page/s of the newsletter/s or trade journal/s carrying the advertisements. Again, the trade or professional organization should be related to the occupation in some logical way. ©MurthyDotCom Private Employment Firm : The employer should use documentation sufficient to demonstrate that recruitment has been conducted by a private firm. Evidence may include contracts between the employer and the employment firm and copies of the advertisements that the employment firm placed to attract potential, qualified job seekers. ©MurthyDotCom Employer Referral Program with Incentives : Proof of in-house Employer Referral Program with Incentives recruitment efforts may include dated copies of employer notices or memoranda that explain the program and specify the incentives offered. An incentive is a benefit or entitlement beyond those an employee typically receives from the employer. Incentives could include additional money beyond the employee's normal pay, extra time off with pay, or a gift certificate for dinner or entertainment. There is no minimum value for the incentive, but it should be sufficient to actually entice the typical employee to participate in the program. ©MurthyDotCom Campus Placement Offices : The employer may document the use of Campus Placement Offices with a copy of the notice of the job opportunity offered, as it is provided to the campus placement office. Ideally, the campus placement office will confirm that it has made the notice available to its users. A campus placement office is a more passive form of recruitment than on-campus recruiting, when the employer is available on campus for interviews. Through the Campus Placement option, the onus is on the candidate to approach the employer on his/her own. Recruiting for positions that require experience again may be questionable unless the campus placement office has a strong program used by alumni in their job searches. The issue of using a school in one state for a job in another state may also apply to campus placement recruitment as with with on-campus recruiting. ©MurthyDotCom Local and Ethnic Newspapers : Proof of a local or ethnic newspaper ad may be a tear sheet or other exact copy of the page in the newspaper in which the advertisement appeared. ©MurthyDotCom Radio and Television Advertisements : The employer may prove this method of recruitment by providing a copy of the text used for the ad, along with a written confirmation from the radio or television station stating when the advertisement was aired. ©MurthyDotCom Conclusion : It is beneficial to employers that the DOL provides many options for fulfilling professional recruitment. It is important for employers, however, to use at least three methods that make sense for the job offered to show the CO, if required, that the recruitment was in good faith. It is equally important to maintain documentation of the recruitment efforts, not only for the period prior to the approval of the PERM labor certification, but for the 5-year period required under the regulation during which the DOL could conduct an audit of the employer under PERM. © 2005 The Law Office of Sheela Murthy, P.C. All Rights Reserved
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