Hilda Solis — the Secretary of Labor — hails proudly from immigrant stock. She understands the suffering immigrants endure for a chance at the American Dream. She also knows the importance of ensuring that U.S. workers are protected and treated fairly. I wonder how she continues to tolerate the abuse of American and immigrant workers, and of U.S. employers, perpetrated in her name under the Labor Department’s PERM program.
An acronym whose official name sounds at once Orwellian, shocking and bureaucratic, PERM stands for Program Electronic Review Management. It is the exclusive method that the Department of Labor (DOL) devised to eliminate a backlog of several years in a longstanding program of labor-market testing (known as a “labor certification”). With a labor certification in hand, a foreign citizen officially completes the first step in an elaborate and lengthy process culminating, if successful, in the grant of an employment-based green card.
The Immigration and Nationality Act (INA) — at § 212(a)(5) — says in bass-ackward and double-negative fashion that no foreign worker is admissible to the U.S. as a permanent resident unless the Secretary of Labor determines that no U.S. worker is willing, able, available and qualified to fill a job that a U.S.-based employer wants the foreigner to fill. Thus, § 212(a)(5) says that the hopeful foreign worker is inadmissible to the U.S. unless Secretary Solis is satisfied that at least one statutorily suitable worker in all of America cannot be found.
This law, as written, puts the duty of action and decision squarely on Ms. Solis’s shoulder. It imposes no burden on the foreign worker, on any U.S. worker willing to apply for the sponsored job, or on the employer. The perverse ingenuity of DOL bureaucrats, however, led the agency long ago to craft a method (now embodied in the PERM program) that unjustly transfers most of the onus of action under § 212(a)(5) from the DOL to the employer, to the foreign national and — most cruelly — to hapless U.S. workers who are duped into applying for a job that in most instances is already filled.
Under PERM and its predecessors, the DOL has illegally foisted on each of these parties various duties that fall squarely within its area of agency expertise, duties that it could do better and more quickly itself:
- The employer is commanded to prove a negative, i.e., that no statutorily suitable worker is available. The employer must also show that the particular job is open in good faith to any U.S. worker who meets the employer’s minimum requirements. (The good faith requirement in practice eliminates virtually all foreign entrepreneurs who set up their own U.S. companies since the DOL presumes that every entrepreneur will act in bad faith to secure a labor certification.)
- The foreign worker is ordered to prove by prior education, training or experience, that she satisfies the employer’s minimum job requirements. (The DOL’s minimum-job-requirements rule effectively bans merit-based hiring since any lesser-skilled U.S. worker who surfaces will cause a more-qualified foreign candidate to be denied a green card.)
- The U.S. worker — treated the most shabbily by DOL of all — is induced to act, unknowingly, as a naïve stooge. Under the PERM (DOL-work-avoidance) scheme, U.S. workers are “punk’d” into applying for jobs that in most cases they have no chance of filling. They are used — at DOL insistence — as guinea pigs merely as a means for the employer to prove to Secretary Solis’s satisfaction that a good faith test of the labor market has been conducted. The DOL does not require (indeed, it lacks legal authority to demand) that the employer hire any minimally qualified U.S. worker who applies for the job. All that happens if the employer “fails” the labor market “test” (meaning that a suitable worker applied who met minimum requirements of the job) is that the foreign worker will not be allowed to move to the next stage of the employment-based green card process under sponsorship of this employer at this time.
The bureaucratic charade known as PERM would be unnecessary if Secretary Solis were to instruct her minions to perform their statutory duties. If DOL were to identify more jobs for which the agency believes there are insufficient numbers of U.S. workers — so-called “shortage occupations” that satisfy § 212(a)(5) — the agency’s illegal burden-shifting to private parties would no longer be necessary. DOL defenders have claimed, however, that identifying shortage occupations is impossible. If that is so, then how did the agency determine under its Schedule A authority that jobs for physical therapists and registered nurses go begging for applicants and thus are exempt from the labor-market testing requirements? Congress certainly believes that DOL can and should identify additional shortage occupations since it gave DOL authority in 1990 (which the agency has not used) to expand the shortage list under the Labor Market Information Pilot program.
I suspect the reason for the Labor Department’s labor-avoidant reluctance to ferret out and declare shortage occupations is that announcing such shortages inevitably produces political heat. At a time of historically high unemployment, DOL likely finds unwelcome the prospect of being in the middle of a Dodge Ball game where U.S. worker advocates, labor unions, employers, business organizations, proponents of immigration and the media — each disagreeing with some of the Labor Department’s worker-shortage declarations — pitch painful spheres at the agency. Fear of a shellacking, however, is no excuse. Secretary Solis, together with the DOL technocrats who devised PERM, cannot continue to shirk the legal duties they voluntarily accepted when taking their oaths of office.
DOL cannot morph statutory duties that the agency finds distasteful into extra-legal mandates on employers and aspiring green-card holders while perpetuating a con-game that gulls employed and unemployed U.S. workers into applying for jobs which they have little hope of getting.
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Readers of this already too-lengthy post, just like silent film audiences viewing The Perils of Pauline, must wait till next time for our cliffhanger to end and find out what happens in the final episode of this electrifying and shocking bureaucratic drama, The Perils of Hilda and Her PERM.