Before filing a PERM application, employers must complete a labor market test through specific recruitment steps. The challenge is that the rules do not always reflect how employers actually hire today. A thoughtful strategy can help employers better align the PERM process with the Department of Labor’s expectation of good-faith recruitment.
Why PERM recruitment is confusing
Permanent labor certification, currently referred to as PERM, is a complicated process that confuses employers and their immigration attorneys alike. One of the most confusing parts of this process is navigating the labor market test required before filing the application with the Department of Labor (DOL). Individualized recruitment was first introduced in the 1970s, and since then the requirements have taken on many different forms. At its core, however, the purpose of individualized recruitment is to ensure that there are no U.S. workers able, willing, qualified and available for the position. See I.N.A. § 212 (a)(5)(A)(i)(I). Understanding the purpose behind the recruitment process is essential to ensuring that the PERM filing adheres to current policy and guidelines.
When DOL regulations and real-world hiring practices do not match
One reason PERMs are so confusing is because the requirements for the labor market test go beyond what is expressly required by the Department of Labor in its regulations. Pursuant to 20 C.F.R. § 656.17(e)(1)(i)(A), (B), before filing for permanent labor certification, the employer must place a 30-day job order with the relevant State Workforce Agency and two Sunday newspaper ads. If the sponsored position requires at least a bachelor’s degree, then the employer must also recruit in three of the sources permitted under 20 C.F.R. § 656.17(e)(1)(ii). These sources are rather outdated, including categories such as trade or professional organizations, local and ethnic newspapers, and radio and television advertisements.
Given the way that most companies recruit and applicants search for jobs today, these requirements may yield few, if any, qualified applicants. Consequently, employers and their immigration attorneys may be tempted to select the least-used recruitment methods to preserve the ability to file the PERM on behalf of the sponsored employee. On its face, such a strategy complies with the permanent labor certification regulations, and the PERM application should be approved.
What “good-faith” recruitment means in practice
However, that strategy may not sufficiently align with the Department of Labor policy and can leave the employer vulnerable to significant financial consequences. The Department of Labor has stated that the intent behind the labor market test is that employers will conduct “good faith” recruitment. Recently, the Department of Labor has made it clear that “good faith” recruitment means recruitment which mirrors the employer’s standard recruitment practices. Employers that fail to adhere to their standard recruitment practices are at risk of substantial fines for discriminatory hiring. For major companies, these fines have exceeded several million dollars.
This implied standard creates a dilemma for immigration attorneys and their clients: How do you conduct good faith recruitment based on regulations that do not reflect your standard recruitment practices? Even though this standard seems impossible to satisfy, it is important that employers make a concerted effort to conduct good-faith recruitment under the permanent labor certification regulations.
Step 1: Compare your usual hiring practices to the PERM rules
Employers and their immigration attorneys should work together to compare the employer’s standard recruitment practices with the Department of Labor regulations. Under 20 C.F.R. § 656.17(e)(1)(i), the employer must place a 30-day job order with the relevant State Workforce Agency and two Sunday newspaper ads, so those steps are mandatory even if the employer normally does not use these recruitment sources.
For positions that require at least a bachelor’s degree, however, the employer has more flexibility in satisfying the three additional recruitment steps required under 20 C.F.R. § 656.17(e)(1)(ii). The employer should review the ten sources permitted by the Department of Labor to determine whether any mirror its usual hiring practices. For example, if the employer normally posts jobs on Indeed and their company website, then to satisfy two of the three additional recruitment steps, the labor market test should include at least a posting on Indeed, as a job search website posting pursuant to 20 C.F.R. § 656.17(e)(1)(ii)(C), and the company website, as an employer website posting pursuant to 20 C.F.R. § 656.17(e)(1)(ii)(B).
Step 2: Choose additional recruitment sources with purpose
If the employer cannot find three additional sources that mirror its standard recruitment practices, the employer should consider the purposes behind the labor market test and select recruitment methods that allow them to best achieve that purpose. For example, the purpose of I.N.A. § 212 (a)(5)(A) is to ensure that no U.S. worker able, willing, qualified and available for the position is displaced by a foreign worker. In practice, that means employers should run recruitment that is most likely to reach the U.S. workers actually able, willing, qualified and available for the position.
This analysis needs to be specifically tailored to the offered position. For example, if the position is for a software engineer and there are a lot of software engineers in the local area, then the employer should select recruitment sources that have a local reach because that recruitment is more likely to reach the applicants who would be most interested in actually working as a software engineer in that area. However, if there are no software engineers in that area, the employer should select recruitment sources that have a national reach because those methods are more likely to reach the applicants who could actually qualify for the position.
Step 3: Document your strategy and update it over time
It is unlikely that any U.S. employer will be able to conduct a labor market test that satisfies the Department of Labor regulations for permanent labor certification and perfectly matches its standard recruitment practices. However, by evaluating the regulations with the intent to conduct a labor market test that best mirrors their standard recruitment practices, employers likely have sufficient justification to survive an audit of their recruitment practices.
This is why documentation matters. Employers should document their strategy and rational for selecting each recruitment source and regularly revisit their strategy as the employer’s own hiring practices evolve.
Why employers should work with experienced immigration counsel
Employers should work closely with experienced immigration attorneys when developing this strategy, as it requires a careful reading of multiple sources of law and policy. The Immigration Law Group at Bernstein Shur is here to guide employers through the labor certification process to ensure that the interests of both the employer and their foreign national employee are protected.
Bernstein Shur’s Immigration Law practice group helps employers navigate an increasingly complex immigration landscape through proactive, compliant strategies that support recruitment, retention, and long-term workforce planning. The group advises businesses across industries—particularly in health care and highly regulated sectors—on matters ranging from temporary work visas and employment-based green cards to I-9 compliance and audit preparedness.
Michael Murray is a shareholder and Chair of the Immigration Law group who advises employers on health care and business immigration strategy, including visa planning, compliance frameworks, and workforce planning to support recruitment, retention, and long-term stability. He can be reached at [email protected].
Olivia Shaw is an associate in the Immigration Law group who advises employers on obtaining temporary work authorization and permanent residence for their employees, with particular experience in health care immigration and business immigration strategies. She can be reached at [email protected].