Page 46 - The Indian EYE 010121

ImmIGRATION JANUARY 01, 2021 | The Indian Eye 46

Justice department’s discrimination complaint against

Facebook chills employer’s ability to legitimately sponsor

skilled Foreign national Workers for a green card

cyrus mehta under INA 274B(a)(1). Face- Matter of Am. Specialty Phar- employers and job seekers do more rational and comport
book was not accused of vio- macy, 2016-PER-00016, 2019 not rely on the print classified with real world practices. In a
he Department of Jus- lating the DOL rules. Under WL 2910815 (BALCA 2019). sections any longer. Indeed, 2008 article Walking The High
tice’s complaint claim- the DOL rules, if the employ- The IER accuses Facebook of most of the advertisements in Wire Without A Net – The
Ting that Facebook er finds a qualified US worker implementing a recruitment the classified Sunday edition Lawyer’s Role In The Labor
discriminated against US after testing the labor market, process intentionally designed of the NY Times have the look Certification Process, Bender’s
workers even when it followed the employer cannot go ahead to deter US workers from and feel of labor certification Immigration Bulletin, Febru-
DOL regulations for sponsor- with the labor certification and applying, thus discriminating advertisements. Although the ary 1, 2009, Gary Endelman
ing foreign national workers is is not required to hire the US against US workers because IER accuses Facebook of re- and I noted how far removed
troubling. It renders every em- worker and terminate the for- of their citizenship status in quiring applicants to respond the labor certification process
ployer vulnerable to charges eign worker who already holds violation of INA 274B(a)(1) by postal mail rather than on- truly is from an employer’s
of discrimination each time the job often on an H-1B visa. (A). The complaint states that line, when its non-labor certi- real world recruitment prac-

it files a labor certification on The IER has accused Face- Facebook uses recruitment fication advertisements allow tices. Although the labor cer-
behalf of a foreign national book of discrimination for not methods for PERM labor cer- for online responses from ap- tification process requires an
worker. hiring US workers for adver- tifications that were different plicants, that in itself is not a vi- employer to conduct a “good
When an employer wishes tisements that were related to than those it employs for its olation of the DOL rules, and faith” test of the US labor
to sponsor a foreign national a labor certification filed on be- regular positions. For example, DOL has already conceded market to determine whether
for a green card, it is required half of a foreign national work- Facebook requires resumes to that the employer’s labor cer- US workers are qualified or
to test the domestic labor er. The labor certification pro- be sent by postal mail for ad- tification recruitment deviates available for the position held
market for qualified workers cess requires the employer to vertisements related to labor from normal labor practices. by the foreign national, the
before a PERM labor certifi- test the US labor market with certifications but for open While in hindsight, Facebook very notion of “good faith”
cation is approved. Labor cer- respect to an application filed market positions they will ac- should have done more to rec- seems oddly out of place when
tification is the first step in the on behalf of a foreign work- cept resumes by e mail. Face- oncile its labor certification ad- used with reference to a re-
employment sponsored green er, and contrary to the allega- book also does not post adver- vertisements with its real world cruitment effort that achieves
card process. It is rather odd tions in the IER complaint, tisements on their website for advertisements, the labor cer- its desired objective by failing
that when Facebook followed is not set up as a program labor certification positions tification process requires the to locate any qualified job ap-
the DOL rules regarding re- for recruiting US workers. but for their other positions employer only to test the labor plicants. Only in the labor cer-
cruitment for a labor certifi- The IER complaint says they do post on their website. market and not to use it to hire tification world do you win by
cation, another agency of the at paragraph 24 that “in con- However, Matter of Am. US workers. The DOL impos- losing. Unable to utilize real
federal government, the Im- ducting recruitment, employ- Specialty Pharmacy, supra, es other requirements on an world recruitment standards,
migrant and Employee Rights ers must also engage in a good which IER cites in its com- employer during labor certifi- compelled to base evaluations
(IER) Section of the Depart- faith search that closely resem- plaint, just says that: “We have cation recruitment, which are upon the entirely artificial
ment of Justice (DOJ) accuses bles the employer’s normal interpreted this regulation as unimaginable in real world re- concept of “minimal qualifi-
it of discriminatory practices recruiting process.” It cites placing a burden on the Em- cruitment. If a US worker ap- cations” that does not exist
ployer to conduct a good faith plicant does not respond to the outside the cordon sanitaire
recruitment effort.” It cites employer’s invitation to an in- of 20 CFR §656, wedded to an
East Tennessee State Univer- terview, the employer must go inflexible job description that
sity, 2010-PER-00038, slip op. the extra mile to demonstrate can never change regardless of
at 11 (Apr. 18, 2011) (en banc), that it did indeed contact the an employer’s business needs
which does go into some more applicant who never showed or a worker’s evolving talents,
detail, but not in the direction up by sending up a follow up e and effectively prohibited from
that IER suggests. BALCA mail or letter to the uninterest- taking into consideration the
stated in East Tennessee State ed candidate, and must prove very subjective character traits
University that “employers that this candidate actually whose presence or absence

seeking permanent labor cer- received the communication! is the most reliable predictor
tification may have to conduct Even when the US worker of effective job performance,
their recruitment in a manner applicant was interviewed and the labor certification process
different than they would nor- rejected, the employer must is fundamentally at odds with
mally in order to ensure that prove that it actually made con- the very economic system it al-
the position is clearly open to tact with the applicant. Thus, legedly seeks to serve.
all qualified U.S. workers.” In even if an employer mirrors its It is reiterated that an
a 2008 Guidance Memo, the real world recruitment with its employer is under no legal
DOL also confirmed that “giv- labor certification recruitment, obligation to hire a qualified

en that the permanent labor and even goes beyond, it will applicant at the end of the
certification program imposes still be vulnerable to a citizen- process. If the employer finds
recruitment standards on the ship discrimination claim by a U.S. worker who is qualified
m of employer that may deviate the IER because labor certifi- for the position, the labor cer-
from the employer’s normal cation recruitment inherently tification dies. In other words,
CYRUS D. MEHTA & PARTNERS PLLC standards of evaluation, the requires a good faith test of the the employer cannot file the

Department understands and labor market, and not to hire labor certification on behalf

appreciates the legitimate role US workers, before the labor of the foreign national worker.
attorneys and agents play in certification can be filed and This makes sense as it would

 
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­ the permanent labor certifica- certified by the DOL. be rather cruel to fire the for-
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‚   tion process.” Rather than penalize an eign worker on a temporary
DOL also insists on re- employer for following the work visa like the H-1B, which
cruitment practices that have rules set forth in 20 CFR 656, can extend for many years,
no bearing on real world re- Congress, the administration, and replace them with the US
cruitment such as placing print or both, could change the rules worker. Even if the employer
2 6th Floor

    advertisements in two Sunday governing the labor certifi- hires this minimally qualified
newspapers even when most cation process to make them US worker, and files the labor
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