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Recruitment Advertising Under The New PERM Regulationsby 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. 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 JobsProfessional 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:
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” [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 TextHere are some tips for preparing the advertising text (not applicable to special handling & supervised labor certification ads). DO:
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