Labor Certifications after Employee Layoffs

The purpose of the labor certification process is to protect U.S. workers. It is a certification from the U.S. Department of Labor (DOL) that there are not able, willing, and qualified U.S. workers available for the offered employment or position. The labor certification is the first step in most employment-based permanent residence (green card) cases. It is important to understand the issues and eligibility criteria for filing labor certifications after an employer has had employee layoffs.

Why Would an Employer Need a Foreign Worker if There Have Been Layoffs?

This is a good question, and it essentially is what the DOL is asking in various formats. The answer lies in geography, occupations, skills, and timing. In this climate, it is quite plausible for an employer to have employee layoffs in one location, while needing additional employees in another location. This happens when operations consolidate, or otherwise restructure. The needs of the employer often shift as a business is modified to adapt to changes, including the economy. There may be an increase in one segment of the business, with a downturn in another. Timing also plays a factor. The employer may have the need to lay people off, for example, early in the year. Should there be an improvement in the economy, however, or if the employer adapts and there is an increase in demand for the company’s products and/or services, then more employees may be needed four to six months later.

What Does the DOL Ask in the PERM Context?

Questions about layoffs arise in the context of employee recruitment efforts. The DOL asks the following question in the PERM labor certification application (9089 form):

“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

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?

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), 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.

Who is a Protected U.S. Worker?

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.

Timeframe of Six Months Preceding Filing the PERM

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.

What is a Related Occupation for this Purpose?

If there have been layoffs of U.S. workers within the six-month period prior to filing the 9089 form, 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. So, 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.

Area of Intended Employment

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/s, 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 United States, 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.

Employer Obligations Under PERM if the Answer is YES to Layoffs

The employer must be able to demonstrate genuine attempts to notify any qualifying laid-off U.S. workers 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 workers who previously held the same or related positions in the appropriate geographic area. The employer must determine whether any former worker potentially is qualified for the position, and must attempt to notify said worker of the opening.

In 2014, the DOL issued guidance in the form of a frequently asked question (FAQ) on the topic of employer requirements for compliance with notification and consideration of a laid-off U.S. worker. The FAQ specifies that it is not sufficient to simply inform such a worker that there may be job openings in the future and invite that individual to monitor the employer’s job postings. Rather, the DOL requires that the employer proactively notify the potentially qualified worker who was laid off during the six months preceding the PERM application. The employer must provide the individual with a full description of the specific job opportunity, and must invite that person to apply.

The DOL requires the employer’s efforts to contact a former employee be reasonable and in good faith. Notice is to be sent via mail, fax, or eMail to the last known address or fax number of the former worker. The employer must obtain such contact information from the employee at the time of the layoff and advise the individual of the option to update contact information in the future, as needed. The employer must let the employee know of the right to decline to receive information about future job openings. If the worker declines or, at a later point, requests discontinuation of notification, the employer has satisfied the notification and consideration obligations.

For an employer that files multiple labor certifications, it is possible to provide a more comprehensive notification. In this situation, the employer must notify the laid-off U.S. worker at least once per month that a list of job openings is available on the company’s website. Such electronic listings must be easily searchable and provide the job title, location, and link to the detailed description and requirements.

The Board of Alien Labor Certification Appeals (BALCA) clarified the notification requirements in 2017 when it issued a decision in Matter of Oracle America, Inc. In this decision, BALCA found that the notification requirement is not satisfied by merely providing a laid-off worker with a termination package that includes instructions on how to view and apply for any and all labor certification job opportunities the employer may offer in the future. Any former employee who responds to the employer’s notification must be evaluated to determine if that individual is able, willing, and qualified to perform the sponsored job, under the standards applied to any other applicant.

DOL Acts as Watchdog

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 matter, 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 the employer’s knowledge, under penalty of perjury. The listed penalties for failing to abide by this include significant fines and up to five years of imprisonment.

Employers must maintain documentation showing compliance with the requirement to notify and consider certain laid-off U.S. workers. This includes such evidence as letters, eMails, and other contemporaneous documentation showing how notice was provided and that any interested former employees were properly considered for the job opening. If former employees decline to receive such notifications or ask that they be discontinued, employers must also retain proof of these communications. The DOL can request such documentation in the context of a PERM LC audit.

In light of the economy, it is likely that the DOL will continue to scrutinize this particular aspect of PERM cases closely. The DOL has said that it reviews all data available, including media reports, Worker Adjustment and Retraining Notification Act (WARN) notices, and data created by other DOL entities.

Murthy Law Firm Can Advise on PERM Filings

Worker terminations by employers seeking certifications for foreign workers is a matter that must be handled carefully. There are many considerations in determining whether a termination is relevant to labor certification filings and, if so, which workers must be contacted. If an employer has had layoffs, or if layoffs are anticipated in the near future, the employer should consult with an attorney well versed in the PERM process. It is just as important to carefully prepare the recruitment report and underlying documentation to demonstrate the employer’s good-faith efforts throughout the recruitment process. Attorneys at the Murthy Law Firm are experienced in navigating the complex issues surrounding PERM cases, and are available to assist employers with their PERM filings.

While some aspects of immigration have changed in significant ways in the years since MurthyDotCom began publishing articles in 1994, there is much that is still the same. From time to time, clients of the Murthy Law Firm are referred to articles, like this one from 23.Jan.2009, which remains relevant and has been updated for our readers.

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