On August 3, 2026, OpenAI OpCo, LLC (OpenAI) entered into a settlement agreement with the Department of Justice’s Civil Rights Division, Immigrant and Employee Rights Section (IER), resolving a set of investigations into the companies’ PERM labor certification recruitment practices. The settlement is a useful reminder for any employer sponsoring foreign national employees for permanent residence: IER believes that the PERM labor market test should not be run differently from ordinary hiring and failure to do so can subject an employer to a charge that its process discriminates against U.S. workers.
What Happened
IER investigated OpenAI for requiring U.S. workers to apply to PERM-related positions by mail, while every other job opening accepted electronic applications through its career site. IER alleged this mail-only requirement functioned as a discriminatory extra hurdle for U.S. worker applicants. This “mail only” process for submitting PERM resumes has been disfavored by IER for several years, most notably in the context of its settlements with Apple and Facebook.
While OpenAI denied the allegations and the settlement is not an admission of wrongdoing, the company agreed to pay a $1.2 million civil penalty and set aside $2 million for potential back pay to affected applicants. What is most instructive for employers is that part of the settlement detailing the compliance program IER negotiated, as it offers a clear picture of what the agency believes is appropriate for the PERM labor market test.
Why This Matters Beyond OpenAI
The PERM labor market test is sometimes treated as a compliance formality – a procedural step layered on top of a hiring decision that has already been made – rather than as genuine recruitment. The underlying logic of IER’s settlement with OpenAI is simple: commonality in process is critical to showing a good faith effort to determine the availability of qualified U.S. workers. Where a U.S. worker cannot apply to a PERM position through the same channels available for any other opening, IER’s position is that this structural disparity can stand as evidence of discrimination, independent of the employer’s intent.
Employers reviewing their PERM workflows now, checking for mail-in requirements or any other process that diverges significantly from ordinary hiring, put themselves ahead of the curve rather than behind it. Conducting the PERM recruitment process consistent with standard hiring, rather than a separate, parallel process that could be perceived as discouraging U.S. worker applicants, is the more defensible compliance posture.
The Settlement’s Best-Practices Blueprint
The settlement lays out in detail what IER apparently believes is the optimal approach to PERM recruitment, signaling that IER favors a PERM policy that:
- Posts all PERM-related positions on the same internal and external career websites used for other openings — no separate or obscure posting locations.
- Accepts electronic applications for PERM positions in the same manner as non-PERM recruitment. This was a core issue of the OpenAI investigation: whatever application channel the company uses for regular hiring, it should also be available for PERM positions.
- Directs State Workforce Agency (SWA) postings to the company’s electronic application page (where DOL and SWA rules permit), rather than funneling applicants toward paper submissions.
- Ensures the company applicant tracking system captures and retains PERM applicants the same way it captures non-PERM applicants, so recruiters can find, consider, and act on them.
For any employer conducting PERM recruitment, the IER settlement with OpenAI effectively creates a checklist for auditing an existing process.
Our Perspective
This settlement is another reminder that DOJ treats PERM labor market testing as fully within its anti-discrimination enforcement mandate. Accordingly, employers sponsoring PERM cases should:
- Confirm PERM positions are posted and searchable the same way as other openings, both internally and externally.
- Ensure PERM applicants can apply electronically wherever electronic applications are accepted for regular recruitment.
- Verify applicant tracking systems do not exclude PERM applicants from recruiter visibility.
- Document a good-faith, job-related qualification review process for PERM applicants, consistent with, yet separate from, the company’s general hiring procedures.
Given IER’s active enforcement posture, employers with PERM programs, especially larger, higher-volume filers, should treat this settlement’s compliance requirements as a practical benchmark for assessing PERM compliance. Meltzer Hellrung’s attorneys stand ready to help employers perform a compliance review of their PERM labor market test procedures. Please contact us for more information.
