During an employment-based Green Card ad campaign, there are certain DOL rules and procedures to abide by as you begin to review applicants for the Green Card job. These FAQs are designed to answer some of the most common questions that arise during the process to get you started on the correct path, however, specific questions about a particular case should be asked of your case manager.
Can we follow the same recruitment process our company uses to review applicants?
No. The Green Card recruitment process is a much stricter process with unique rules to follow. You will need to modify your process to ensure applicants are not inadvertently rejected without proper review. Things to keep in mind:
- DOL requires you to make a good faith effort to find a qualified U.S. worker, meaning every applicant needs to be carefully considered to ensure that if they are rejected there is a lawful reason to do so.
- You may need to contact and further review an applicant if you are unsure if they are qualified.
- You cannot reject an applicant for not having “soft” skills, personality traits, etc. All job-related reasons for rejection must be based on the job’s actual minimum requirements that are listed in the advertisement. If a requirement is not listed in the advertisement, it cannot be used to reject an applicant.
- The foreign national employee is not allowed to participate in this process at all.
Can we use our own internal system to track applicants?
No. ISS provides a customized Applicant Tracking Log that contains all the information needed to help you comply with the legal standards of the DOL. If you want to use both your internal system and the Applicant Tracking Log that is okay.
Who is considered an applicant?
An applicant is anyone who applies to the specific Green Card job, regardless of the method used for application (e.g., via state job order site, email, etc.). If a person applies, they are considered an applicant and need to appear on the Applicant Tracking Log. This means that any methods used to auto-reject applicants need to be turned off. Ensure to have a resume on file for each applicant (if any application lacks a resume, you must try to obtain it from the applicant).
Should we reject applicants without ISS review?
No. Do not reject any applicant until ISS has reviewed the proposed rejection for compliance with DOL regulations. This prevents scenarios where you need to contact an applicant who was rejected in error. It is imperative not to auto-reject applicants. Post rejection contacts are risky in PERM Green Card Recruitment.
Can we reject/disqualify an applicant using Artificial Intelligence (AI) or without human review?
No. While there may be tools to help narrow down applicants, you should never rely entirely on AI to screen applicants. Any screening performed by AI should be verified by a person to ensure no mistakes were made and all DOL rules were followed.
What is the first step we should take when we start to receive applicants?
The DOL requires timely contact with each applicant. Send each applicant a general communication indicating their application has been received and you will be in touch if any further information is needed. This communication should not discuss the applicant’s qualifications. Do not wait until all applicants have been received to begin contacting them.
If a non-U.S. worker is identified, may that end the inquiry/review process?
Yes. Any applicant who is not a U.S. worker can be rejected without reviewing their qualifications. They still need to be listed on the Applicant Tracking Log and all documentation, including resumes, must be retained. A U.S. Worker includes U.S. citizens or nationals, lawful permanent residents, asylees, and refugees. A non-U.S. worker includes individuals requiring sponsorship now or in the future (e.g., H-1B, OPT, TN). Keep in mind that just because an applicant does not reside in the U.S. does not mean they are not a U.S. worker.
When should we send the Applicant Tracking Log for first round of review?
To ensure all applicants are being reviewed correctly, please send ISS a draft of the Applicant Tracking Log after a few candidates have been considered or within 3 days from the start of advertisements, whichever is sooner. Do not wait until your review is complete as it is much harder to correct any actions that may have already occurred.
What documentation are we required to maintain for each applicant?
Everything. All resumes, cover letters, and applications received from each applicant should be maintained in your audit file. In addition, all communications to and from applicants should be maintained, including copies of any automatic responses sent out of your internal systems. These documents must be kept for 5 years from the date of filing the PERM.
Can we reject an applicant who is unresponsive, or no-shows?
Maybe, but only if the proper steps are taken. An applicant can lawfully be rejected for failure to respond if you have tried to contact them multiple times via multiple contact methods they have provided, i.e. email, phone and mailing address. Ideally these contact attempts conclude with sending a certified letter to the applicant seeking their desire to engage in the recruitment process. Please remember to keep copies/records of all contact attempts.
What are some common rejection reasons that are not lawful?
It is not lawful to reject applicants for reasons such as being overqualified, better suited for another role, desired salary above the offered wage (unless they specifically refuse it), distance from worksite, applying for multiple jobs, or lacking traits not listed in the job advertisement.
Must we interview any applicants?
Maybe. If it is not clear based on review of the resume that the person meets the minimum qualifications for the Green Card job, then you need to inquire further. If there is any doubt as to whether or not the applicant is qualified, it is best to perform an interview. The DOL considers an applicant qualified if they can acquire any missing skills through a reasonable period of on-the-job training.
How do we determine a reasonable period of on-the-job training?
There is no set legal standard for what is considered reasonable. What is reasonable will vary from employer to employer, from job to job, and even from skill to skill. There may be skills that must be completely held from the first day of employment, while others may be developed after employment begins. For skills where it may be possible to bridge the gap through reasonable training, you cannot reject an applicant for lacking them.
Can we hire a qualified U.S. worker that is found?
Yes. If you have more than one opening in the Green Card job, you can hire the qualified U.S. worker and still continue the Green Card process.
Can the foreign national PERM beneficiary be involved in the Applicant Review process?
No. Involving the foreign national in this process would call into question whether the recruitment was conducted in good faith and would be a conflict of interest.
Can layoffs impact the Green Card process?
Yes. Layoffs can impact your ability to move forward with the Green Card. If your company is considering layoffs at any point in the process, please notify ISS to discuss implications whenever possible. Also, please contact ISS if you have had a layoff in the Green Card job or a similar occupation.
