The Impact of Layoffs on the PERM Process

The economic cycle keeps changing, and after years of a decent economy, we’re back to that part of the cycle that results in tough decisions companies make about their workforce.  If a company lays off a part of its workforce and at the same time is conducting recruitment for a PERM labor market test, it needs to be careful to comply with Department of Labor (DOL) laws that govern what it can and cannot do.

A company needs to make special good faith efforts when it has a layoff or reduction-in-force at the same time they are starting a permanent labor certification (PERM), otherwise known as the Green Card application process.  By law, if there is a layoff within 6 months of filing the PERM application, the employer is required to take extra steps during the PERM process.  During the normal PERM application process, the employer is required to openly advertise, recruit, and interview qualified US workers for the specific position being sought in the application process.  Special good faith notification measures must be taken by the employer to ensure recently laid-off US employees are aware and have a legitimate opportunity to apply for the position.

DOL regulation 20 C.F.R. § 656.17(k)(1) states the following:

“If there has been a layoff by the employer applicant in the area of intended employment within 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.”

So, let’s take a closer look at what this regulation really means.

The employer must notify potentially qualified US workers of a job opening who were laid-off in a 6-month period prior to the filing of a PERM application for a foreign worker.

Qualified workers are considered those who a) worked in the area of intended employment and b) worked in the occupation that is advertised or in a related occupation. 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.

The notification requirement only applies to individuals who have been laid off within the 6-month period.  The requirement does not apply to individuals who have been terminated or fired for cause.  It also does not apply to individuals who have resigned or quit.  Contractors are not required to be notified since they are not employees of the company.

A good-faith effort to notify recently laid-off employees was explained in a 2017 DOL ruling.  The DOL ruled that an employer is to make a good faith and affirmative effort to contact those eligible laid-off individuals.  The company is to send out a specific notice to eligible laid-off employees that a position is being advertised when the employer seeks a permanent labor certification.  The ruling was clear that a general notice or statement that simply informs the laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings does not go far enough.

From this ruling, employers need to make a good faith effort to notify qualified laid-off individuals.  It is recommended the company use methods such as express mail, certified mail, or e-mail to contact the individuals using their last known contact information.  The notification should include:

1. the full description of the specific job opportunity,
2. an invitation to apply for the position, and
3. clear instructions on how to apply for the position.

To provide a plausible defense that the company complied with the DOL’s requirements, they should document all their good faith efforts to contact all affected US workers, interview qualified individuals, and the legal reasons for disqualifications.  It should be noted that even if a candidate does not meet all the skill set requirements as advertised and is disqualified, the company should provide an explanation of why the candidate could not acquire the missing skill sets within a reasonable time with the assistance of on-the-job training.

A company with foreign workers should notify their immigration lawyers anytime they are going through a layoff immediately, especially if there are individuals going through the PERM application process.  It is important for the company to receive timely and professional guidance to avoid mistakes in the PERM application process.  We at Bashyam Global Immigration Law Group are experienced in assisting employers in navigating the many regulations associated with the PERM application process.