"Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application? If yes, were the laid off U.S. workers notified and considered for the job opportunity for which the [labor] certification is sought?"

Multiple-Part Question on the PERM Form
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The question asked by the DOL is a multipart question. Each element must be analyzed to determine if the answer is YES. 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. As covered below, in order to determine the appropriate response to the question posed by the DOL, it is necessary for the employer to analyze the following.

• Have there been layoffs?

• Did the layoffs occur within the past six months?

• Were the former employees U.S. workers?

• Were the former employees working in the area of intended employment?

• Were the former employees working in the occupation set out in the labor certification?

• Were the former employees working in a related occupation?

What is the Relevance of a Layoff in the PERM Context?
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Technically, a layoff is a temporary loss of job, but it is often used in both the temporary- and permanent-loss-of-job contexts. The layoff provision is designed to incorporate reductions in force and downsizing; however, it can include an individual termination. Layoffs are defined as any "involuntary separation of a worker without cause." Therefore, it does not extend to situations in which the employer has terminated the worker for cause. It also only involves involuntary terminations. If the only terminations were either voluntary or for cause (such as poor work performance, etc), then the response to the question may be NO. The PERM regulations have made the issue of layoffs employer specific. The question does not consider industry layoffs.
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Who is a Protected U.S. Worker?
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The DOL is concerned with protecting U.S. workers. The layoff provision only applies to U.S. workers (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 answer to the DOL's question is no.
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Timeframe of Six Months Preceding Filing the PERM
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The DOL is only concerned with layoffs that occurred within the six months immediately prior to filing the Form 9089. Therefore, any layoffs that were more than six months prior to the filing can be disregarded. Layoffs that occur after the filing of a labor certification also do not change the answer to the question.
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What is a Related Occupation for this Purpose?
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If there have been layoffs of U.S. workers within the six-month period prior to filing the Form 9089, the employer must determine whether any former employee was working in the occupation on the labor certification or a related occupation. A related occupation is defined as any position that involves a majority of the essential duties of the sponsored position. Thus, if there were layoffs of U.S. workers in unrelated positions, the appropriate response to the question may be no. The issue of whether a position is considered related or not will be clear in some situations, and less so in others. It is important for employers to be careful when answering this question, as all others on immigration-related documents, since most responses are under penalty of perjury. Employers should be prepared to support any determination on this or any related matter, in the event of an audit.
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Area of Intended Employment
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The final requirement is that laid-off former employees 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.
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Employer Obligations under PERM if the Answer is "Yes" to Layoffs
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The employer 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, if the response to the question on layoffs was yes. It is the employer's responsibility to identify the terminated U.S. workers who previously held the same or related positions in the appropriate geographic area. The employer must determine whether any worker potentially is qualified for the position, and must attempt to notify the worker/s of the opening.
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The employer must document the good-faith attempts to notify former employees, as some may no longer be reachable. 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.
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DOL Acts as Watchdog
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The PERM process is an attestation-based process. So, to a certain degree, it relies upon the honesty of the petitioning employer. However, lest any employer be tempted to be less than forthright on any issue, it is important to reiterate that, by filing the labor certification the employer is attesting that all information contained within the 9089 is true and accurate to the best of her/his knowledge, under penalty of perjury. The listed penalties include significant fines and up to five year of imprisonment.
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In light of the current state of the economy, it is likely that the DOL will scrutinize this particular aspect of PERM cases closely. The DOL has said that it will review all data available, including media reports, Worker Adjustment and Retraining Notification Act (WARN) notices, and data created by other DOL entities.
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Murthy Law Firm Can Advise on PERM Filings
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Worker terminations by employers seeking certifications for foreign workers is a matter to be handled carefully when the economy is in flux. There are many considerations in determining whether a termination is relevant to labor certification filings and, if so, which workers must be contacted. Thus, employers are encouraged to consult with their immigration attorneys to seek appropriate guidance in this complex area. This should be done when an employer has had layoffs as well as when layoffs are anticipated in the near future. It is just as important to carefully prepare the recruitment report and underlying documentation to demonstrate the employer's good-faith actions throughout the recruitment process and, if needed, demonstrate the consideration of former employees as part of the efforts to locate U.S. workers. We at the Murthy Law Firm are familiar with the complex issues surrounding PERM cases, and are available to assist employers with their PERM filings.

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