U.S. Immigration Development to Watch: Investigations of PERM Labor Certification Applications

Ashlee Drake Berry, Mayreni Heredia, and Angelo Paparelli - Feb 19 2024
Published in: Public Policy
| Updated Feb 21 2024
Employers sponsoring noncitizens for employment-based permanent residency through the PERM program should consider reviewing and, if necessary, modifying their PERM recruitment practices

Disclaimer: The views and opinions expressed in this article are solely those of the authors and do not necessarily reflect the official policy or position of WERC.

On 9 November 2023, the U.S. Justice Department’s Immigrant and Employee Rights (IER) section, the agency that investigates and assesses fines against employers suspected of unlawful citizenship status discrimination, announced a $25 million settlement with a publicly traded company to resolve claims of recruitment-related discrimination under Immigration and Nationality Act (INA) § 274B. The announcement is similar to a 19 October 2021, $15 million settlement with IER (and a companion settlement with DOL) involving another public company. 

This type of allegedly prohibited recruitment practice is a top IER enforcement priority, as confirmed by its Deputy Special Counsel, Alberto Ruisanchez, in this 26 October 2023 webinar hosted by the College of Labor and Employment Lawyers.

In these settlements, IER alleged that each company’s PERM recruitment was not conducted in good faith because it differed from their normal recruiting practices outside the labor certification context, e.g., the failure to post the PERM position on the employer’s external website where non-PERM jobs are posted. 
The settlements followed a 2 June 2021 administrative law judge (ALJ) decision that ruled that IER was legally justified in attempting to penalize an employer for allegedly violating INA § 274B through a “scheme of set-asides of certain positions for only temporary visa holders and ineffective methods of recruitment designed to solicit minimal, if any, response from individuals outside the targeted group of temporary visa holders.” The ALJ held that 1) the employer’s alleged conduct could be seen as “manipulating the [employer’s] hiring practice to disqualify individuals based on citizenship,” and 2) an employer’s “compliance with DOL [PERM] regulations does not, in and of itself, eliminate the possibility of an employer acting in a discriminatory manner in violation of [INA § 274B].”

In light of these settlements, employers sponsoring noncitizens for employment-based permanent residency through the PERM program should consider reviewing and, if necessary, modifying their PERM recruitment practices in order to avoid or mitigate potential liability and brand damage in case IER were to investigate any suspected or claimed instances of citizenship status discrimination. 

In addition, employers should consider whether there may be potential affirmative defenses available if IER initiates an investigation based on its own authority or upon a third-party’s filing of a claim of citizenship status discrimination. For example, depending on when the PERM recruitment ended, a statutory or regulatory 180-day administrative limitations period may make the claim time-barred.

Another potential affirmative defense to an IER investigative proceeding might be based upon a 8 November 2023 preliminary injunction issued against the agency by a federal district court in Brownsville, Texas (Space Exploration Technologies, Corp. aka SpaceX v. Carol Bell et al., Civ. Action No. 1:23-cv-00137). In that case, the court determined that because an ALJ’s decision in favor of IER under INA § 274B is not subject to review by the attorney general, this statute is unconstitutional, in violation of the Appointments Clause (U.S. Const. Article II, Section 2, Clause 2). While this preliminary ruling only applies for now in favor of SpaceX, employers facing an IER PERM-based investigation might wish to consider a comparable Appointments Clause challenge to IER’s authority.

Ashlee Drake Berry is a business immigration attorney licensed to practice law in five U.S. jurisdictions. She is currently an attorney at Vialto Law (US) PLLC. Contact her at ashlee.d.berry@vialto.com

Mayreni Heredia is a business immigration attorney licensed to practice law in the state of New York. She is an attorney at Vialto Law (US) PLLC. Contact her at mayreni.heredia@vialto.com

Angelo Paparelli is a partner with Vialto Law (US) PLLC, licensed to practice law in California, New York, Michigan, and the District of Columbia. Contact him at angelo.paparelli@vialto.com