The PERM labor certification process, overseen by the Department of Labor (DOL), requires U.S. employers to prove that there are no available, qualified U.S. workers for a position in which they want to permanently place a foreign worker. In the event a company has layoffs while undergoing PERM for foreign national talent, there are special rules that apply to ensure that the employer has given careful attention to its own U.S. workers.
Specifically, 20 CFR 656.17(k) provides:
- If there has been a layoff by the employer applicant in the area of intended employment within six (6) months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.
- For the purposes of paragraph (k)(1) of this section, a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.
This layoff provision is designed to incorporate reductions in force and downsizing; however, it can include an individual termination.
Who Are Protected U.S. Workers?
The term “U.S. workers” encompasses a broad group, including U.S. citizens, permanent residents, refugees, asylees, and certain temporary residents. U.S. employers are obligated to notify only those individuals who have been laid off in the same or a related occupation as the one for which labor certification is sought.
Notification Requirements
It’s a mandated requirement by the DOL for U.S. employers to actively notify laid-off U.S. workers of available job openings. This extends beyond the mere suggestion for affected workers to monitor the company’s career page; it involves a direct, bona fide effort to inform those impacted by layoffs. While specific methods for notifying laid-off employees are not delineated by the DOL, U.S. employers must be prepared to substantiate their notification efforts. This entails keeping comprehensive records of all forms of communication with laid-off workers, whether through emails, letters, or notes from phone conversations.
The Critical Six-Month Window
DOL places significant emphasis on the six months leading up to a U.S. employer’s submission of a PERM application. This period is critical for assessing an employer’s compliance with regulations related to layoffs. Should layoffs have occurred within this window, the employer may be subject to an audit and required to provide additional evidence of their recruitment efforts.
It is important to note that while having had layoffs does not automatically preclude an employer from filing a PERM application, it does introduce additional considerations and requirements to the process. The employer’s ability to successfully navigate these requirements can impact the outcome of the PERM application. Employers considering filing a PERM application following layoffs are advised to proceed with caution and consult with an immigration attorney to ensure compliance with all relevant regulations and to mitigate the risk of adverse outcomes.