EXPERT INSIGHT 55 MAY 2022 | WWW.LAWYER-MONTHLY.COM qualified US applicants for PERM jobs with requirements that yielded resumes and applications from US workers through the non-PERM recruitment practices, the risk of liability is likely high, particularly for clients filing large numbers of PERM applications annually. By comparison, where no pattern emerges from the comparison and the overall number of PERM filings per year is relatively small, the risk is much lower should the employer elect to continue following different PERM and regular hire recruitment and selection practices. What other major case law in the US concerns corporate sponsorship of immigrant and nonimmigrant professionals? Does US v Facebook represent a departure from this? Facebook is the first decision of such practices cause clients to suffer an award of civil money penalties and compensatory damages for unlawful citizenship status discrimination. Practitioners fear that abandoning standard PERM practices as Facebook has agreed to do will lead to a significant decrease in the number of PERM approvals – preventing foreign workers from advancing with green card sponsorship. The American Immigration Lawyers Association (AILA), the specialty bar for immigration practitioners, has advised its members to notify their employer clients of the risks associated with continuing separate and distinct recruitment and selection practices for PERM and non-PERM cases and has recommended that attorneys conduct a careful risk assessment for each client by comparing past results involving similar jobs and requirements. Where disparate practices have resulted in a pattern of failing to identify and select minimally certainty as to the ultimate result or cost, the company elected to negotiate settlement agreements with both the IER and DOL containing non-admission clauses. Under these agreements Facebook agreed to change its PERM practices to conform to its standard hiring procedures, train all personnel involved in the PERM process, submit to IER and DOL monitoring over a two-year period and pay $14.1 million in civil money penalties and compensatory damages to injured US workers. Under Facebook’s separate settlement agreement with the DOL, Facebook agreed to suspend all new PERM filings for 36 months – or until October 2024. What is this case’s relevance to PERM applications, and why has this given rise to concerns of liability for systemic citizenship status discrimination by employers seeking to sponsor foreign professionals for green cards? The ALJ’s decision denying Facebook’s dismissal motion has upended the bar’s assumptions regarding the legality of standard recruitment and selection practices used in PERM cases and exposed attorneys to potential malpractice claims should The ALJ’s decision denying Facebook’s dismissal motion has upended the bar’s assumptions regarding the legality of standard recruitment and selection practices used in PERM cases.
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