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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Recruitment Advertising Under The New PERM Regulations

by Kiran Vairale-Mumtaz and Sam Udani

PERM has changed how recruitment is conducted for Labor Certification purposes. Previously the pattern of recruitment varied from State to State. However, PERM provides bright-line tests and recruitment has become easier under the new regulations. 

Both non-professional and professional job opportunities require conducting the recruitment steps within 6 months of filing the PERM application. However, professional job opportunities have additional recruitment requirements (discussed below). When preparing a recruitment plan for filing under PERM, employers/attorneys need to first identify whether the job opportunity is professional or non-professional. A professional job opportunity is defined in “Appendix A” of the PERM rule – note that under PERM, a job requiring a degree may not necessarily qualify the job as a professional job opportunity.  

Non-Professional Jobs

Advertising requirements for non-professional job opportunities are straightforward. Under the regs “the employer must at a minimum place a job order and 2 Sunday newspaper ads within 6 months of filing the application”. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.

Exception: if the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer may then use the edition with the “widest circulation” in the area of intended employment.

Professional Jobs

Professional job opportunities require experience as well as an advanced degree. Employers/Attorneys are required to place 2 Sunday newspaper ads and conduct 3 additional recruiting steps, which can be simplified by using the 2 + 3 formula.

The primary 2 ads can be 2 Sunday ads in the local newspaper OR 1 of the Sunday ads can be replaced with an ad in a professional journal “most likely to bring responses from able, willing, qualified and available US workers”.

Selecting a combination of any 3 additional recruitment methods listed below can satisfy the additional recruitment component for professional jobs:

  1. Job fairs
  2. Employer’s website
  3. Job search website other than the employer’s
  4. On-campus recruiting
  5. Trade of professional organization
  6. Private employment firms
  7. Employee referral program with incentives
  8. Campus placement offices
  9. Local and ethnic newspapers
  10. Radio and television

Note: Once the job opportunity is identified as professional, the employer should work out the entire recruitment plan BEFORE the advertisements are placed because of the multiple deadlines that need to be juggled. For example, many journals or newsletters have submission deadlines almost one to two months before the publication date, while job fairs and on-campus recruiting efforts may need advance planning several months in advance. Prior planning is necessary because the PERM rule requires that only one of the additional steps may consist solely of activity that took place within 30 days of the filing of the application and none of the steps may have taken place more than 180 days prior to filing the application.  

Professional Journal Vs. Trade Or Professional Organizations

“Professional journal” [656.17(e)(1)(i)(B)(4)] differs from “trade or professional organizations” [656.17(e)(1)(ii)(E)]. The difference between these 2 phrases is critical.

In the first clause of the regulations it reads as “Professional Journal” and in the second clause it is “Trade or professional organization”. What is the difference?

If a professional journal is chosen as a form of recruitment in lieu of a Sunday advertisement, it can be any trade journal published in that field of interest or trade. What used to be called ‘Professional or trade journal’ is now only “Professional journal most likely to bring responses”. The standard therefore is higher.

Examples:Aviation Week” “Adweek” “Wall Street Journal” “Computerworld” “Graphic Design” would qualify as professional journals because all are considered leading publications in their respective fields.

However, if an employer chooses to use the second option of trade or professional organization, the bar is slightly lower. The definition is broader and can include a newsletter that is published by a trade organization (or an association or society) that consists of members with similar interests and/or qualifications. When choosing this option, the employer also needs to keep in mind that not all publications accept employment advertising.

Tips For Preparing Advertising Text

Here are some tips for preparing the advertising text (not applicable to special handling & supervised labor certification ads).

DO:

  1. Include employer’s name in ad [656.17(f)(1)]
  2. Direct applicants to “report or send resumes” as appropriate for the occupation to the employer [656.17(f)(2)]
  3. Provide a description of the job opportunity specific enough to apprise US workers of the vacancy for which certification is sought, and [656.17(f)(3)]
  4. Indicate the geographic area with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job.
    [656.17(f)(4)]
DON’T:
  1. Include a wage lower than the prevailing wage rate [656.17(f)(5)]
  2. Include any job requirements/duties which exceed the job requirements or duties listed on the ETA Form 9089; and [656.17(f)(6)]
  3. Include wage or terms and conditions of employment that are less favorable than those offered to the alien. [656.17(f)(7)]


About The Author

Kiran Vairale-Mumtaz is Vice-President of Adnet Advertising Agency Inc. and has been involved in labor certification advertising for over a decade. Adnet Advertising Agency Inc. is the largest placer of labor certification advertising in the U.S.

Sam Udani has spoken before many bar associations throughout the country on labor certification and law practice management. In 1992, he co-founded Adnet Advertising Agency Inc, a company specializing in labor certification advertising and was involved with that company through 2000. In 1999, he acquired ILW.COM (which was founded in 1995), and propelled it into the leading immigration law publisher online. He is the publisher of ILW.COM's Immigration Daily which now reaches 15,000 subscribers every weekday. He has authored articles on labor certification in AILA Monthly Mailing, Bender's Immigration Bulletin, and Immigration Daily.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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