Question: Facebook was recently in the news for failing to engage in good-faith recruitment in the PERM labor certification process. What happened, and what can other employers do to avoid potential liability?

Answer: As part of the employment-based green card process, employers must complete a labor market test to prove there are no qualified U.S. workers for the position the immigrant employee holds. The labor market test entails posting recruitment for the position on the State Workforce Agency (SWA) website, posting two Sunday ads in a newspaper of general circulation, an internal notice of filing posting, and a choice of three additional advertisements for professional positions such as posting on the employer’s website, a job search website (such as Indeed or Monster), campus placement office, local newspapers, or radio ads, among others.

On October 19, 2021, the U.S. Department of Justice (DOJ) announced a $14.25 million settlement that Facebook must pay for its misuse of the Permanent Labor Certification (PERM) program. The DOJ found Facebook “routinely refused to recruit, consider or hire U.S. workers . . . for positions it had reserved for temporary visa holders in connection with the PERM process.” The DOJ further stated, “Facebook used recruiting methods designed to deter U.S. workers from applying to certain positions, such as requiring applications to be submitted by mail only; refused to consider U.S. workers who applied to the positions; and hired only temporary visa holders.”

You must conduct good-faith recruitment, meaning posting the PERM recruitment in a similar way to the company’s standard recruitment processes. You should post the PERM position on your website, accept resumes electronically, complete timely review of all candidates applying for the position within two weeks, and maintain proper documentation for interviews conducted.