Apple’s recent $25 million settlement with the U.S. Department of Justice (DOJ) serves as a cautionary tale for employers engaged in the Permanent Labor Certification Process (PERM) when sponsoring employees for permanent residence.
The Labor Market Test
The PERM program necessitates a rigorous labor market test to ensure that no qualified U.S. workers are available for the sponsored foreign national’s intended position. This test requires employers to advertise the job opening and conduct recruitment in a manner closely aligned with their standard practices for any open position.
Recruiting for Qualified U.S. Workers: What DOJ Alleges Apple Did Wrong
While the PERM program may also require certain recruitment methods that differ from an employer’s usual practices, such as newspaper advertising, employers must exercise caution not to introduce modifications that could deter qualified U.S. workers from applying for the position. The DOJ’s investigation alleged that Apple had implemented unequal recruitment practices, creating a disparity in the likelihood of qualified U.S. workers applying or having their applications considered for PERM program positions compared to other open roles.
Facebook Faced Similar Allegations Of Discriminatory Recruitment Practices
In a similar vein, the DOJ reached a $14.75 million settlement with Facebook in 2021 for comparable recruitment practices.
Consequences For Discriminatory Recruitment Practices
Employers naturally seek to retain their top talent, including foreign nationals, to remain competitive globally. However, engaging in disingenuous recruitment practices aimed at hindering or preventing qualified U.S. workers from being considered not only violates the anti-discrimination provision of the Immigration and Nationality act (INA), but can also lead to other penalties, such as fines, supervised recruitment or even debarment from U.S. permanent resident sponsorship.
By partnering with an experienced legal team, employers should be able to navigate the complexities of the PERM processing in a compliant way, reducing the risk of potential legal complications and penalties, thereby safeguarding their workforce and organizational reputation.