Since 2005, employers in the US have used the PERM Labor Certification Process to act as sponsors for foreign national employees for Lawful Permanent Presence status, better known as “green cards.” This process requires employers to use a highly regulated recruitment process that tests whether or not there are any minimally qualified US workers to fill the position. This procedure is intended to protect US workers from harm caused by hiring foreign workers. Under this procedure, an employer can only sponsor an employee if there are no qualified US workers to fill the position.

Now the Department of Justice (DOJ) has suggested that US employers may need to change how they handle the PERM process, as shown by a recent lawsuit by the federal agency. In this case, the DOJ states that employers must take similar efforts when recruiting domestic and foreign employees and accuses an employer of discriminating against US workers in its hiring process despite following the Department of Labor’s (DOL) requirements. The DOL is the agency tasked with supervising the PERM process.

The DOJ alleges that the company, in this case, discriminated against US workers by creating a different process from its regular recruiting procedures for PERM positions despite meeting the minimum regulatory requirements. According to the DOJ, the company applied less effective advertising techniques in an attempt to dissuade American workers from applying to the positions. This employer chose to accept an enormous settlement for millions rather than fight the case, which will require the company’s PERM hiring to undergo considerable scrutiny for the following three years as well.

The DOJ seems to be attempting to address the entire system, and in addition to increased enforcement of the PERM program’s requirements, employers are being encouraged to align their PERM hiring with their ordinary recruitment practices. Despite this, it is still unknown whether or not the DOL’s own standards are themselves discriminatory.

Though the official PERM process has not changed, employers should review their policies and take some steps, including:

• Ensure applications for PERM and regular hiring are performed through the same media on centralized application processes.
• Establish streamlined descriptions for positions between all job advertisements.
• Offer all new positions to employees that were recently laid off.
• Provide employees involved with the hiring process with anti-discrimination training.
• Describe the requirements for the position and the benefits being offered.

By taking these steps, employers can help ensure that their PERM hiring process remains compliant with the DOJ’s recent position and avoids any unnecessary litigation. However, whenever you are in doubt, it is always a good idea to consult with an attorney.