October 2024 PERM Tip #1: Preemployment Screening Requirements for PERM

BIB Daily presents bimonthly PERM practice tips from Ron Wada, member of the Editorial Board for Bender’s Immigration Bulletin and author of the 10+ year series of BALCA review articles, “Shaping the Future of PERM.” Questions or comments may be sent to Ron at ron.wada@tandslaw.com.

Should an employer’s preemployment screening requirements (e.g., reference checks, criminal background checks, drug tests, etc.) be stated in a PERM application as job requirements?  Such requirements are not specific to a particular job opportunity but instead may apply to all hires across the board.  Including such requirements in any description of PERM job requirements triggers a cascade of additional obligations in how the PERM ads are phrased, how the PERM job requirements are stated on the Form 9141 Application for Prevailing Wage Determination, how the beneficiary’s qualifications are described in the Form 9089 PERM application, how the employer conducts its evaluation of US applicants, and how the employer responds to an audit requesting details regarding the results of recruitment:

• If a preemployment job requirement is included in either the PERM notices and recruitment ads, it MUST also be included in Section F of ETA Form 9141;
• If a preemployment job requirement is included in Section F of ETA Form 9141, it MUST also be included in the PERM notices and recruitment ads;
• If a preemployment job requirement is included in Section F of ETA Form 9141, the beneficiary’s compliance with the preemployment job requirement SHOULD also be listed somewhere in Appendix A of ETA Form 9089 to show that the beneficiary met that requirement.

The astute practitioner should be alert to spot preemployment screening requirements early in the process and either: (1) eliminate them entirely from the PERM job requirements stated on the Form 9141 and in all recruitment ads and postings, or (2) incorporate them explicitly in all forms of recruitment and in the description of the beneficiary’s qualifications given in Appendix A to Form 9089.  Ideally, attorneys should proactively evaluate their client employers’ preemployment job requirements in total and advise employers concerning the risks and benefits of disclosing or not disclosing such requirements in PERM-related notices and ads. 

For further information, see:

Ron Wada, “Shaping the Future of PERM – BALCA Highlights 2022,” 28 Bender’s Immigr. Bull. 427 (Feb. 15, 2023); Matter of Ashley Hall Foundation, 2021 BALCA LEXIS 129 (BALCA June 29, 2021); Matter of Vocollect, Inc., 2021 BALCA LEXIS 54 (BALCA Mar. 23, 2021); Matter of Webroot, Inc., 2021 BALCA LEXIS 138 (BALCA June 14, 2021);  Matter of Lafayette Parish School System, 2022 BALCA LEXIS 147 (BALCA Aug. 30, 2022).