The road to fair PERM applications is marked by twists and turns. For a few years it will seem as though the courts are open and accepting of employers’ desire to bring in aliens to work for their firms. A few cases will go the direction of the alien application, and slowly but surely employers will get lazy with their applications, thinking that they can sneak a few fast ones by the courts. The courts do their best to be fair and equal to all in the eyes of the law, but they usually do not react well to being pushed by employers to be more lenient in their judgement.
This push and pull happens all the time with PERM applications because the requirements leave a lot of room for interpretation. What should domestic rather than immigration advertising look like if the employer already knows it wants to hire an immigrant? A lot of employers will actually find an alien they would like to hire and then go through the PERM procedures to hire them. Knowing that they want to hire a foreigner, the employer will purposefully adjust some components of their domestic job posting to ensure that no one qualifies. For example, an employer might put extremely specific task requirements on their domestic job posting.
Here are two recent cases in which PERM applications were denied by the Certifying Office (CO) on similar grounds to those just mentioned:
Matter of Tech Services LLC – In this case from 2016, the company got in trouble for vague language around its offered wage. The application form stated that a “competitive salary” would be given to the employee. The CO deemed the lack of clarity to be a burden on the domestic workers’ interest in the position. It was on these grounds that the application was denied. The CO would have prefered to see a set number or no number at all. The vagueness around wage was deemed to be a tactic to dissuade serious domestic parties from applying for the position.
Techorbits – The case of Techorbits is a perfect illustration of a company that had already found an alien to fill their vacant position but had to go through with PERM to hire them. Techorbits filed an application to bring an alien into America to fill the role of Business Development Manager. In their application they stated that they could not hire any domestic workers because no one would settle for the given salary. The CO found this to be untrue, as two domestic applicants had not been given the option to discuss their salary expectations.
Employers are encouraged to undertake a thorough domestic job search without any expectations. Companies that poach foreigners and try to expedite their entry into the States via PERM are doing their nation a disservice.
