SWA Referral Requirements Differ Between PERM and H-2B Cases

From: USADNEWS Volume VII, Issue 9 December 2013

There are many differences in the recruitment process for PERM and H-2B cases. The most notable perhaps is the difference in the length of time the State Workforce Agency (SWA) job order is required to be posted.  H-2B job orders need to only be posted for 10 days, versus the traditional 30-day posting period for PERMs.

Another area of difference is in the required steps employers must take to contact applicants and subsequently include them in the final recruitment report.  The Department of Labor (DOL) FAQs regarding PERM job orders asks in Question 4:

  • Must the employer contact all individuals identified as a “match” by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?

The DOL proceeds to answer this question as follows:

  • The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.

This response by the DOL clearly puts the responsibility on the job seeker to make an affirmative application for the job. The employer is not held responsible for contacting or keeping a record of job seekers that do not actively apply, but are merely “matched” by the SWA’s referral system.

By contrast, the regulations for H-2B job orders require employers to contact all job seekers who actively  apply or are referred by the job bank. The regulations at 20 CFR § 655.15(j)(2)(ii) mandate that on the recruitment report the employer must “[s]tate the name and contact information of each U.S. worker who applied or was referred to the job opportunity up to the date of the preparation of the recruitment report.” Employers are also required to retain the “resumes (if available) of, and evidence of contact with” any applicants who have applied or have been referred by the SWA.

USADWEB can obtain the names of applicants that have been referred by the Workforce at the end of the 10-day posting period.