PERM Labor Certification is the process through which employers demonstrate their intent of hiring a foreign national for a permanent position in the United States. It was designed to protect the rights and opportunities of U.S. Workers, therefore requiring lengthy steps in recruitment in order to obtain a certification from the U.S. Department of Labor (DOL). After an employer has completed all recruitment efforts and provides evidence that there are no qualified, willing, or available U.S. workers for the offered position, the DOL will certify & issue the Labor Certification. The labor certification is the first step in most employment-based permanent residence (green card) cases. With the recent economic downturn it is important to be aware of the issues and eligibility criteria that arise when an employer involved in the labor certification process has had employee layoffs.
We have recently seen layoffs in all areas of business which have left thousands scratching their heads as to why an employer would need to hire a foreign national while laying off some of their employees. The reality of the situation is that it an employer may require employee layoffs in one location, while needing additional employees in another business location. Many businesses have had to restructure their companies and cut their losses resulting in the shutdown of less productive operations or consolidations. Employers have to be ready to modify their spending in a downtrodden economy. There may be an increase in one segment of the business, with a downturn in another.
Any employer that has filed a PERM Labor Certification knows that the DOL specifically asks whether the employer has had a layoff in the area of intended employment in the occupation or in a related occupation within the six months immediately preceding the filing of the application. If this is the case, the employer is required to provide information and evidence demonstrating that U.S. workers were notified and considered for the job opportunity for which the labor certification is sought.
Before answering yes when your company has had recent layoffs, be sure to examine each part of the question to determine if it applies to you. If the answer is yes, then the employer is required to try to contact and consider certain potentially-qualified former employees for the job opening. Below is a list of questions designed to assist you in determining whether the above inquiry applies to your business:
- Has your company had any layoffs?
- Did these layoffs occur within the past six months?
- Were any of the employees laid-off U.S. Workers?
- Were the former employees working in the area of intended employment?
- Were the former employees working in the occupation set forth in the labor certification?
- Were the former employees working in an occupation related to that in the labor certification?
If the position or job opportunity does not fall into these categories, then an employer has a greater opportunity at receiving the labor certification. It is important to remember that the DOL is only concerned with protecting U.S. Workers. The layoff provision only applies to U.S. workers (i.e. U.S. citizens, lawful permanent residents, and individuals who do not require sponsorship to work in the U.S., such as refugees / asylees). If no U.S. workers have been terminated, then the employer need not worry about this portion of the question. Additionally, if an employer has not had any layoffs in the past six months, then there should be no rise for concern on the employer’s part as the DOL is only concerned with recent layoffs occurring throughout recruitment periods.
The last requirement of companies with recent layoffs is that former U.S. Workers included in any layoff must have worked in the area of intended employment, which is the geographic area where the offered position is to be performed (including normal commuting distance). If the labor certification is for work in a specific location (or locations), and the former employee lives within arguably normal commuting distance, then the response to the question must be yes. If the sponsored position does not have a set work location, but rather anticipates various worksites throughout the U.S., then yes must be the answer to the question, if there have been any layoffs of U.S. workers in related occupations within the six-month period.
If your company has had recent layoffs which fall under the above criteria, then you must be able to demonstrate genuine attempts to notify U.S. worker/s of the job opportunity and that the former employee/s were considered for the position. The DOL is firm in their regulations requiring employers to identify the terminated U.S. workers who previously held the same or related positions in the area of intended employment. The employer must determine whether any worker is potentially qualified for the position and must attempt to notify the worker/s of the opening.
Not only must an employer make these attempts to contact U.S. workers who were previously laid off, but they must also document the good-faith attempts to notify former employees. Any of the former employees who respond to the employer’s notification must be evaluated to determine if they are able, willing, and qualified to perform the sponsored job, under the standards applied to any other applicant. The employer does not have to contact former employees who are not potentially qualified based upon the requirements set forth in the labor certification.
DOL has issued statements affirming that due to the economic hardship the country is currently facing, they will have to carefully scrutinize this particular aspect of the PERM process.
