Individuals Matched to a Job Order Not “Applicants” for Purposes of PERM

The permanent labor certification process (also referred to as PERM) allows an employer to hire a foreign national to work permanently in the United States. Prior to filing a PERM application for a foreign worker with the U.S. Department of Labor (DOL), U.S. employers must conduct a cumbersome recruitment process to first attempt to hire a U.S. worker. Demonstrating that the recruitment process was correctly undertaken and failed to yield an able, willing and qualified U.S. worker is a required part of the PERM application. The regulations require employers to retain specific documentation to be submitted in response to a potential audit by DOL. One such document is a recruitment report listing all U.S. applicants for the position and providing lawful reasons for their rejection.

On August 25, 2015, the Board of Alien Labor Certification Appeals (BALCA), which is responsible for reviewing PERM denials, issued a decision in Matter of Usmania finding that individuals matched to a Job Order by the Illinois State Workforce Agency (SWA) were not considered applicants for purposes of PERM.