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The US Department of Labor (DOL) and US Department of Justice (DOJ) have announced a settlement with Facebook concerning allegations that the company discriminated against US workers in conducting its PERM Labor Certification recruitment in a certain manner. Facebook will make a $4,5 million penalty payment to the US government under this settlement, while making $9.5 million available to eligible victims of this discrimination and agreeing to train its employees on the discrimination provisions of the Immigration Reform and Control Act of 1986. Perhaps far more damaging to the company from an employee recruitment and retention perspective, they will be permitted to withdraw current PERM filings currently underway and will pause future PERM filings for a 36-month period. This may encourage qualified professionals in a very competitive recruitment market, especially those from high-retrogression birth countries anxious to establish a priority date and conscious of the passage of six-year H-1B periods, to look elsewhere for employment
The PERM labor certification process is the first stage in the overall green card process for most employment-based immigrants. It involves a test of the US labor market by the employer to ensure there are no qualified, willing and available US workers for the position. The employer has to actively recruit for the job by placing advertisements.
There are extremely strict rules for how the recruitment process must be conducted and how ads must be run/what they must contain – yet there is also a rule that the company must conduct recruitment in a manner consistent with its general, non-PERM recruitment efforts or risk being found to be discriminating against potential US workers.
This presents difficulties for the employer, as the rules mandate recruitment in a manner not at all consistent with how most companies recruit – there is a requirement of at least one Sunday newspaper advertisement, and it’s rare for a company to recruit by that method currently. The rules underpinning the PERM recruitment process are old and no longer consistent with the recruitment methods most companies use these days.
Facebook was accused of discriminating against potential US workers by conducting its PERM recruitment in a totally different way than the methods it used for its other, non-PERM recruitment efforts in violation of the requirement that these be consistent. It would seem that the only hope an employer has of even attempting to comply would be to continue its typical efforts – be those internal recruiters, postings on its own web site, or other methods (even if not among acceptable PERM recruitment methods) in addition to the required PERM efforts.
It’s unclear whether there will be any changes in the PERM recruitment regulations given the widespread realization surrounding this settlement concerning just how out of sync PERM recruitment rules are with generally accepted modern recruitment methods.