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Managing Past Layoffs during PERM Labor Certification

By: Angelita Chavez | July 19, 2018

By Mishita Jethi

Many US employers are familiar with the PERM labor certification (LC) process. Employers must test the labor market for a US worker before they can file an LC and sponsor a green card for permanent foreign employees. However, companies should be aware that their layoff history is also an important factor in securing a green card for a foreign worker.

When US employers sponsor permanent positions, they usually need to start by filing an LC. The LC process ensures to the Department of Labor (DoL) that hiring a foreign worker will not displace a US one. Employers must test the labor market, advertise for the position, and make good faith recruitment efforts to find a US worker. Then, they file an LC to attest that despite their best efforts, no able, willing, and qualified US worker was available for the position.

But testing the labor market does not fully guarantee that US workers will not be displaced. The DoL requires sponsoring employers to confirm that they did not perform any layoffs in the six months before filing the LC application, that are in:

  • The area of intended employment
  • The occupation or a related one

If the employer has made any pertinent layoffs within the past six months, the DoL requires them to notify or contact any laid-off US workers who could have potentially filled the permanent position. If one of the laid-off US workers can fill the sponsored position, then the DoL will not approve the LC application.

The layoff verification process gets more complicated when an employer lists “unanticipated client locations,” or if the sponsored position does not have a fixed work location. In this case, the employer must verify whether there have been layoffs of US workers anywhere in the US related to the sponsored position.

For recent qualifying layoffs, employers must give the full description of the job to all such laid-off US workers with a request to apply if interested. Employers who file multiple LC applications can create a broader notification policy where they inform laid-off US workers periodically about potential job opportunities within the company.

The DoL relies on the employer’s attestations, so it is important that employers keep a detailed record of layoff compliance to prove their case in a possible DoL audit.

Do You Need to Address Layoffs in the Labor Certification?

Employers should consider the following questions to determine whether they need to advertise the sponsored position to recently laid-off employees.

  1. Have there been any layoffs?

If the response to this question is ‘Yes’, then the employer needs to do further analysis of the layoffs and review the questions below.

  1. Were the layoffs done within the six months preceding the filing of the LC application?

If the layoffs were done more than six months prior, the employer is not required to contact the laid-off employees.

  1. Were any US workers laid off?

If the laid-off employees were not US workers but temporary visa holders, the employer is not required to contact them. If you are unsure of the laid-off employee’s work authorization status, please consult with an experienced attorney before filing the LC application.

  1. Were the laid-off US workers from the area of intended employment?

If the LC application is for a fixed work location, the employer only needs to consider that work location and others within commuting distance. For “roving” positions, where the employee works at unanticipated client locations as required by projects, the employer needs to consider layoffs in all US locations.

  1. Were the laid-off US workers in the same or related occupation as the sponsored position?

If the laid-off US workers were employed in the same or related occupation as the sponsored position, then the employer must contact them.

For example, if the sponsored position is for a Software Engineer, then similar positions would be considered related, including:

  • Programmer
  • Computer Engineer
  • Software Developer

It is irrelevant whether a laid-off worker had different technical tools or skills from the position being sponsored.

If you answered “Yes” to the above questions, then you should consult with an experienced attorney to formulate a strategy for the labor certification.

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