What Employers Must Know Before Filing a PERM Application If Layoffs Have Occurred
An employer filing a PERM Labor Certification must demonstrate to the Department of Labor (DOL) that U.S. workers will not be displaced by hiring a foreign worker to fill a permanent position. Therefore, employers must conduct a series of recruitment activities to adequately test the U.S. labor market for able, willing, qualified, and available U.S. workers. If no such workers are found, the employer may file a PERM Labor Certification on behalf of the foreign worker. As a part of this recruitment process, layoffs of U.S. workers within the company must be carefully considered before a PERM application can be filed.
The PERM regulations state that a sponsoring employer must demonstrate that it has notified and considered all potentially qualified laid-off U.S. workers under the following circumstances:
- There has been a layoff by the sponsoring employer in the area of intended employment within the six months of filing a PERM application; and
- The layoff involves the occupation for which certification is sought or a related occupation.
The employer must also provide the results of the notification and consideration in the event of an audit.
What does “layoff” mean?
Per DOL regulations, a layoff means “any involuntary separation of one or more employees without cause or prejudice.” The notification and consideration requirements apply even if only one layoff occurs within the company. The notification and consideration requirements are not triggered by workers fired for cause or by contract staff who are laid-off.
It is important to note that employers only need to consider its own laid-off workers and therefore are not expected to consider layoffs occurring at other companies within the area of intended employment. That being said, the DOL may on its own consider industry layoffs and issue an audit or even supervised recruitment. This is especially true if there is an economic downturn in the U.S.
When must layoffs be considered in the PERM context?
Layoffs must be considered when they occur in the six-month period preceding the filing of the PERM application.
What does “area of intended employment” mean?
Per DOL regulations, “area of intended employment” is defined as “the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which the certification is sought.” Also, any place within the Metropolitan Statistical Area (MSA) is deemed to be within normal commuting distance of the place of intended employment. This is important to remember for those employers who have multiple work locations within the same area of intended employment because layoffs must be considered at those additional locations.
What does “related occupation” mean?
Per DOL regulations, a “related occupation” means “any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.” In order to determine if an occupation is related, employers will need to carefully compare the essential job duties listed for the sponsored occupation with the essential job duties performed by laid-off workers. The employer should also consider the time spent on each overlapping job duty in its analysis.
What does “potentially qualified” laid-off U.S. worker mean?
DOL regulations do not define what “potentially qualified” means. Therefore, employers must carefully review the education, training, and experience for all “potentially qualified” laid-off U.S. workers.
Further, a “U.S. worker” per DOL regulations is a worker who is:
- A U.S. citizen or U.S. national;
- A U.S. Lawful Permanent Resident;
- An individual admitted as a refugee under § 207 of the Immigration and Nationality Act (INA);
- An individual granted asylum under § 208 of the INA;
- Any immigrant otherwise authorized (by INA or by the Attorney General) to be employed in the United States.
The definition of a U.S. worker excludes any laid-off workers who are on non-immigrant visas (such as an H-1B).
What is an employer’s notification obligations?
Employers are required to notify and consider all potentially qualified laid-off U.S. workers.
The regulations do not provide much guidance on what “notification” means in the PERM context and therefore employers are left to decide how to provide proper notification. Nevertheless, employers must always make a reasonable and good faith effort to notify potentially qualified U.S. workers.
Employers should choose an option that it believes in good faith will reach the laid-off worker. For example, an employer can send the notification by certified mail, fax, or e-mail to the last known contact for each laid-off worker.
The notification must:
- Provide a full description of the specific job opportunity;
- Include clear instructions; and
- Invite the worker to apply for the position.
Further, at the time a worker is laid off, the employer should request from the worker their appropriate contact information to permit the required notification and consideration. The employer must inform the worker that it is their responsibility to apprise the employer of any change in the contact information. The employer may inform the worker that they may decline to receive or, upon the worker’s later request, discontinue such notification. Where a worker declines to receive such notification, the employer will be deemed to have met its notification and consideration obligations. Where a worker requests that notification be discontinued, the employer will also be deemed to have satisfied its notification and consideration obligations for the remainder of the six-month period.
What is an employer’s consideration obligations?
If a laid-off worker applies for the job opportunity for which certification is sought, the employer must consider the U.S. worker. A U.S. worker will be deemed “qualified” only if the worker, by their education, training, experience, or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation as customarily performed by other U.S. workers similarly employed. If the laid-off U.S. worker is qualified, they may be rehired.
If the laid-off U.S. worker is deemed not qualified, the employer will need to explain in detail why the U.S. worker could not perform the job duties for the role and why the worker could not perform the duties of the position with a nominal period of on-the-job training. The employer must clearly document the lawful job-related reasons for disqualification.
How should employers document proof of notification and consideration?
Employers must always keep written documentation of the notification and consideration conducted. Employers must also document the results of the notification and consideration. This information will be used to create the recruitment report that will be submitted to the DOL in the event of an audit. The report should include the following:
- Number and names of U.S. workers laid off in the occupation or related occupation;
- Proof of notification to the potentially qualified laid-off workers;
- Number of laid-off U.S. workers who did not respond or chose not to apply for the opportunity;
- Number of laid-off workers who actually applied and their respective resumes;
- Reasons for lawful disqualification and any other related evidence.
Note that in order to fulfill the good faith recruitment requirement, employers should still consider those laid-off U.S. workers who did not apply for the position. Employers should clearly document whether the individual was qualified or not. If the individual appears qualified, the employer should show proof of the notice and consideration and explain that the laid-off worker did not respond or apply.
Employers must carefully consider how layoffs within the company may impact the ability to file a PERM application if that layoff occurred within the six months prior to filing the application. Employers should always contact a qualified immigration attorney to assist with creating a proper plan of action to avoid any unwanted issues with the Department of Labor that could significantly impact a company’s future ability to sponsor an employee through the PERM based green-card process.
Reddy & Neumann, P.C. has been serving the business community for over 20 years and is Houston’s largest immigration law firm focused solely on US. employment-based immigration. We work with both employers and their employees, helping them navigate the immigration process quickly and cost-effectively.
By: Krystal Alanis
Krystal Alanis is a Partner at Reddy & Neumann, P.C. with over 10 years of experience practicing U.S. business immigration law. Krystal manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. Krystal guides clients from a variety of industries through the maze of the PERM Labor certification process and has handled thousands of PERM applications throughout her career. Krystal guides employers through the I-140 and Adjustment of Status process, and assists clients with temporary work visas. Further, she oversees the firm’s I-9 compliance team where she advises employers regarding Form I-9 Employment Eligibility Verification requirements and conducts internal audits of a company’s I-9 records, processes, and procedures. Additionally, Krystal represents clients in Form I-9 U.S. Immigration and Customs Enforcement (ICE) inspections (Notice of Inspection). Krystal successfully settled a claim with ICE over Form I-9 substantive paperwork violations that led to an 88% reduction in civil fines for her client.