Facebook Litigation and the Impact on Green Card Recruitment
On October 19, 2021, a settlement was reached between Facebook and the Department of Justice, stemming from a lawsuit that alleged Facebook had engaged in discrimination against U.S. workers during PERM-based Green Card recruitment. The impact of this litigation and whether it signals a change in enforcement priorities will not become clear until more time passes. Unfortunately, due to the settlement, we also do not have the benefit of a court decision to dictate whether Facebook’s PERM-based recruitment practices were in fact discriminatory or not.
This case is important because it puts all companies on notice that the DOL and DOJ may increase scrutiny of recruitment methods used during the common PERM-based Green Card process. This could also signify the creation of a new unwritten rule that PERM-based recruitment options utilized by companies, to test the U.S. labor market as required under this program, should more closely mirror real-world recruitment methods utilized.
Summary of the PERM Recruitment Options per Regulation
The existing professional position PERM recruitment rules, which are clearly provided (perhaps until now) under 20 CFR § 656.17, require a company to pick three forms of ‘professional’ recruitment from the list provided below. Note that these are forms of recruitment beyond the mandatory Sunday Ads, State Workforce Agency Posting, and Internal Posting Notice at the company site which all companies need to utilize through this sponsorship process. The options provided include:
(1) Job fairs: Recruitment at job fairs for the occupation involved in the application, which can be documented by brochures advertising the fair and newspaper advertisements in which the employer is named as a participant in the job fair.
(2) Employer’s website: The use of the employer's Web site as a recruitment medium can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.
(3) Job search website other than employer’s: The use of a job search Web site other than the employers can be documented by providing dated copies of pages from one or more website(s) that advertise the occupation involved in the application.
(4) On-campus recruiting: The employer's on-campus recruiting can be documented by providing copies of the notification issued or posted by the college's or university's placement office naming the employer and the date it conducted interviews for employment in the occupation.
(5) Trade or professional organization: The use of professional or trade organizations as a recruitment source can be documented by providing copies of pages of newsletters or trade journals containing advertisements for the occupation involved in the application for alien employment certification.
(6) Retaining private employment firms: The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.
(7) Employee referral program: The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.
(8) Campus placement office: The use of a campus placement office can be documented by providing a copy of the employer's notice of the job opportunity provided to the campus placement office.
(9) Local and ethnic newspapers: The use of local and ethnic newspapers can be documented by providing a copy of the page in the newspaper that contains the employer's advertisement.
(10) placing radio and television advertisements: The use of radio and television advertisements can be documented by providing a copy of the employer's text of the employer's advertisement along with a written confirmation from the radio or television station stating when the advertisement was aired.
Although any combination of these options is allowed under the regulations and has until now been fine to utilize, the Facebook case and settlement at least raises the concern that perhaps a company also has to consider how closely these options track real-world recruitment. The frustration is that this is not codified in the existing rules anywhere.
Summary of the Facebook Settlement and Forced PERM Recruitment
The motivation for the DOJ to file this case in the first place, under the Trump Administration, has come under question. That said, the fact remains that we now have a settlement which perhaps signifies a new era in PERM recruitment.
It is important to consider that the settlement is requiring Facebook to conduct the following forms of PERM recruitment, where the rules themselves typically provide various options for companies:
Facebook' s Careers website (https://www.facebook.com/careers): The DOJ is requiring that the job advertisement must be posted on the company website, in the same manner and format as other roles are posted on that website, and for a minimum of 14 calendar days.
Job Search Website (other than Facebook's Careers website): As one of the additional recruitment steps Facebook has to advertise the role, for a minimum of 14 calendar days on one of the following websites:
(1) dice.com,
(2) hired.com,
(3) softwareengineer.com, or
4) ieee.org
Utilize a trade or professional organization publication as one of the additional recruitment steps.
So the DOJ has decided that the company website, an additional job search website, and a trade publication are the methods that Facebook should abide by moving forward as a result of the lawsuit and investigation into Facebook’s practices. Does this mean that these methods are a safe harbor moving forward or merely that recruitment should more closely track whatever the norm is for a company and the particular industry?
It is worth noting that what might also have drawn the attention of the DOJ in this lawsuit was the fact that Facebook apparently only allowed applicants for PERM roles to apply via mail and did not accept emailed applications or other electronic application methods. In our opinion, this is likely one of the more clear takeaways from this settlement, that the methods of accepting applications should be in line with modern practices.
The settlement provided explicitly that Facebook:
Must accept electronic resumes or applications for PERM-related positions via Facebook's Careers website, in the same manner as electronic applications are accepted for other roles posted on Facebook's Careers website; and
May not require or encourage applicants to apply via mail for PERM related positions.
What does this mean for your Immigration Program?
As a result of the settlement, we are not able to know what the court would have thought of Facebook’s existing PERM recruitment practices. Instead, we are left with a short settlement and some insight into what the DOJ is forcing Facebook to do in order to comply with good faith anti-discrimination recruitment.
Our recommendation at this time is for each company to work with their counsel in this area to compare normal company recruitment practices against the PERM-based recruitment options utilized to test the U.S. labor market. To be clear, these two concepts are not the same and the PERM rules were never set up to require the forms of recruitment to track exactly.
Although the government should be following proper rulemaking processes to make any changes to the existing letter of the law if they want companies to follow more strict practices, it is still imperative for companies to take this opportunity to re-evaluate whether current PERM practices could withstand a challenge by the DOL or DOJ.
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