Importance of Resume Review (interview) In The PERM Process
Department of Labor (DOL) drawing its statutory powers from the Immigration and Nationality Act [INA § 212(a)(5)(A)(i)] has a statutory obligation to ensure that no foreign worker is given permanent residence in the country when there are sufficient and qualified U.S. workers to fill that vacancy. The only condition on which such a foreign worker will be allowed is if it is shown that admitting the worker into permanent residence will not in any way jeopardize the rights, wages and working conditions of US workers.
To ensure this, the DOL makes efforts to investigate whether the employer had first considered suitably qualified US workers for the vacancy. Thus, before an employer can file for permanent labor certification through PERM, they are required to first recruit and consider qualified US workers through ads. This recruitment and consideration of US workers is required to be done before applying for a labor certification and not during the PERM process. In fact, employers are prohibited from placing the vacancy ads during the PERM labor certification process.
This goes to show the importance of resume review in a PERM process. Depending on the internal operations of the employer company, resume reviews are carried out by lawyers or agencies qualified for that purpose. Regardless of this practice, all submitted resumes must be first reviewed by the employer.
What does “good faith” entail in resume reviews?
Employers are under obligation to carry out the recruitment process in a normal way that gives everyone an equal opportunity and not including special requirements tailored to fit only one person’s (usually, foreign worker’s) profile.
Also, each submitted application must be responded to, and where it is rejected, reasons for rejection must be expressly stated. The importance of this meticulous recruitment process comes to light during a PERM process, as before labor certification can be granted, it must be shown that there were no qualified or sufficient US workers.
Some employers make the mistake of not responding to some applications. Even if the job applicant asked to be contacted in a month’s time or stated different skills other than the ones indicated in the job vacancy ads, the employer has a duty to contact the owners of each submitted resume and review them through an interview. During a PERM process, the employer has to show details of the recruitment exercise carried out by them, giving convincing reasons why all those applicants were rejected, making it unavoidable to seek a foreign worker.
Whatever the situation, each applicant must be replied to and interviewed as DOL will carry out an investigation. Failures to conduct a proper resume review is usually the most popular cause of an audit from the DOL.
The Board of Alien Labor Certification Appeals (BALCA) has some decided cases where they have held conclusively that an employer must carry out the resume review in good faith. Detailed reasons for the rejection of any resume by the employer must be given.
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