Recent Federal Actions Bring Renewed Attention to Employer Green Card Programs

Recent federal actions involving several major employers have brought renewed attention to employer-sponsored green card programs and, in particular, the Permanent Labor Certification, or PERM, process. These developments reflect continued government scrutiny of how employers recruit and consider U.S. workers in connection with PERM sponsorship, including whether PERM recruitment practices differ from the procedures employers ordinarily use to fill open positions.

Recent PERM Suspensions and Investigations

In October, the Department of Labor announced the suspension of several large technology employers from participation in the PERM program in connection with ongoing federal investigations. DOL indicated that it would not accept or process new PERM applications for the affected employers during the suspensions.

These actions should be distinguished from prior settlements resolving specific allegations involving PERM recruitment, such as the government’s 2021 settlement with Facebook, now Meta, and its 2023 settlement with Apple. Importantly, investigations and administrative suspensions do not themselves constitute final findings that an employer violated the law. Nevertheless, the recent activity demonstrates increased federal attention to employer recruitment practices in connection with permanent residence sponsorship.

Recent Settlement Highlights Recruitment Procedures

In a separate recent matter, the Departments of Justice and Labor announced a coordinated settlement with a technology employer concerning allegations that qualified U.S. workers were disadvantaged during recruitment for PERM-sponsored positions. The resolution included significant monetary remedies, restrictions on the employer’s participation in the PERM program, and continued government oversight of its recruitment practices.

Of particular significance, the government’s allegations focused not simply on whether the employer completed the recruitment steps required under the PERM regulations, but on differences between the employer’s ordinary hiring practices and the procedures used for PERM recruitment. According to the government’s allegations, certain PERM-related positions were not advertised through the public careers website used for ordinary job openings. Applicants were instead directed through a separate application process that allegedly prevented some external applicants from successfully submitting applications and being considered for the positions.

Other recent federal enforcement activity has raised similar concerns about whether recruitment procedures used for PERM positions differ from employers’ ordinary hiring practices in ways that affect U.S. workers’ ability to learn about, apply for, or be considered for available positions. These matters have resulted in significant monetary settlements and government monitoring of employer recruiting practices.

Taken together with the earlier Meta and Apple settlements, these developments illustrate that government scrutiny of PERM programs may extend beyond whether an employer completed the particular advertising steps required by the PERM regulations. The mechanics of the recruitment process, including where positions are advertised, how applicants are instructed to apply, whether application systems function as intended, and how potentially qualified U.S. applicants are considered, may also receive scrutiny.

What These Developments Mean for Employers

Although the facts and procedural posture of each matter differ, the recent enforcement activity provides several practical considerations for employers that sponsor foreign national employees for permanent residence.

First, employers may wish to review how their PERM recruitment procedures compare with their ordinary recruiting practices. Differences do not necessarily mean that a recruitment process is improper, as PERM itself imposes procedures that may differ from ordinary corporate recruiting. However, employers should pay particular attention to differences that could make it more difficult for U.S. workers to learn about a position, submit an application, or receive appropriate consideration.

Second, employers should confirm that the mechanisms used to receive PERM applications operate as intended. Email accounts, online application systems, career-site links and other application methods should permit candidates responding to PERM recruitment to successfully submit their information. Employers should also maintain appropriate documentation of recruitment results and the consideration of potentially qualified U.S. applicants.

Third, employers should consider the relationship between PERM recruitment and their regular corporate career sites and hiring systems. The recent enforcement matters suggest that federal agencies may examine not only whether a PERM advertisement technically satisfies applicable requirements, but also how the recruitment opportunity fits within the employer’s broader hiring process.

Finally, the distinctions among these matters remain important. Some recent actions involve ongoing investigations or administrative suspensions, while others involve settlements resolving specific government allegations. Employers should therefore avoid drawing conclusions about any particular company based solely on the announcement of an investigation or suspension.

Taken together, the recent developments provide a timely opportunity for employers to review their PERM programs. Employers with significant PERM activity should consider reviewing their career-site practices, application procedures, applicant consideration processes and recruitment documentation to ensure that their processes provide U.S. workers with a meaningful opportunity to apply and are consistent with applicable PERM and anti-discrimination requirements.

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