U.S. employers are eligible to sponsor foreign nationals for a U.S. Green Card through the U.S. Department of Labor's (DOL) Program Electronic Review Management (PERM) labor application process. Before a PERM labor application may be filed with the DOL for a foreign national, a U.S. employer is required to place a series of advertisements (i.e., recruitment) in order to test the U.S. labor market to determine if there are any qualified U.S. workers available to fill the permanent position the U.S. employer wishes to offer a foreign national, and which forms the basis for the Green Card benefit. Recently, the U.S. Department of Justice (DOJ) entered into a settlement agreement with Apple, Inc. (hereinafter "Apple") based on allegations that Apple engaged in discriminatory PERM recruitment practices. Under the settlement agreement, Apple is required to pay back pay of up to $18.25 million to certain eligible U.S. worker claimants and $6.75 million in civil penalties to the U.S. government. This settlement agreement is something U.S. employers should take heed.
The DOJ's settlement agreement with Apple alleges that Apple departed from its standard recruitment practices during the PERM recruitment process. Specifically, DOJ alleges the following:
- Apple did not advertise for the PERM position(s) on its external job website (which is a method of recruitment Apple normally uses).
- Apple required applicants interested in the PERM position to mail paper applications to Apple, as opposed to submitting their application electronically (which is the method Apple normally requires applicants to apply for their positions).
- Apple failed to consider applicants who applied for the position electronically, as opposed to mailing an application.
DOJ asserted that the above discriminatory PERM recruitment practices deterred U.S. worker applicants from applying for the offered PERM position or resulted in U.S. worker applicants being unfairly disqualified for consideration.
The DOJ's settlement agreement with Apple shares some similarities with a settle agreement the DOJ entered into with Facebook, Inc. (hereinafter "Facebook") in October 2021. Under this settlement agreement, Facebook was required to pay $4.75 million in civil penalties to the U.S. government and $9.5 million to certain U.S. worker claimants. In the settlement agreement with Facebook, DOJ alleged the following:
- Facebook required U.S. worker applicants to mail in resumes to the company, as opposed to using an electronic application process, which the company normally used.
- Facebook did not advertise on its website for the Green Card positions, even though it normally advertised all of its positions on its website.
- Facebook diverted U.S. worker applicants to other positions within the company, during the recruitment process, so Facebook could move forward with Green Card sponsorship for foreign nationals.
- When placing print newspaper advertising, and the newspaper offered to advertise the Green Card position(s) on electronic websites or electronic sources (free of charge), Facebook declined the offer.
Both the Apple and Facebook settlement agreements reflect that no matter the size of the company, the U.S. government is committed to preserving the integrity of the PERM labor application program and preventing discriminatory practices by U.S. employers. Moreover, employers should not assume that the government's investigations into PERM recruitment are driven by politics: the Facebook and Apple investigations were conducted in both the Trump and Biden administrations. These settlement agreements (and/or the allegations listed above) also provide a guide for U.S. employers as to what not to do in order to demonstrate good faith PERM recruitment. Those U.S. employers that rely heavily on the PERM labor certification program should take notice of these settlement agreements and tread carefully in order to avoid fines, additional scrutiny by the U.S. government, and negative media attention. Employers should consult with their employment/immigration attorney if they have concerns about their PERM-based recruitment practices.
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