Labor certification is the process by which an employer proves to the Department of Labor that there are no available, qualified US workers who want a specific job in a specific geographical location at a specific time. There are special rules that apply in the event of layoffs to ensure that the employer has given careful attention to its own laid off workers and gave them the opportunity to take any new job openings.
Generally, if any qualified US worker wants the job that is the subject of the PERM application, the employer cannot have a labor certification. This is especially true in the event of layoffs. The PERM labor certification layoff rules focus on the 180 day period occurring immediately before the employer files the labor certification application. Layoffs occurring during this period trigger the rules that require the employer to notify laid off workers and also to report the results of that notification to Department of Labor.
If the employer has had a layoff in the area of intended employment within six months of filing the application that involves the same job, or a related job, then the employer has to document that it has notified and considered all potentially qualified laid off US workers for the job opportunity and document the results of the notification and consideration.
20 CFR §656.17(k). The regulation reads:
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 U.S. workers.
Where layoffs are staggered or have flexible end dates, or employees receive compensation on payroll for a period after their last day of work, it may be difficult to determine a layoff date for the purpose of calculating the 180 days. The six month time period has its origin in the Reduction in Recruitment labor certification filing process. Under the RIR program, Department of Labor instructed Certifying Officer to consider available US workers.
Who to Notify. The employer only must notify US workers. A US worker is one who is a US citizen, U.S. national, lawful permanent resident (or certain temporary resident), refugee, or asylee. 20 CFR §656.3. The employer only needs to notify laid off US workers who worked in the same, or 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. 656.17(k)(2).
How to Notify. There is no specific method identified in the law for notifying laid off employees of the new job opportunity. Under old case law predating the PERM regulations, courts held that the employer must make a “reasonable effort” to contact the applicant and that the facts differed by case. The American Immigration Lawyers Association sent proposed methods of contact to the Department of Labor to ask if the Department would accept them. These included:
As of the date of this letter, Department of Labor has not yet responded to AILA’s inquiry. Sending a certified letter with return receipt requested is probably the safest method of contact from the perspective of trying to document the employer’s efforts to contact laid off US workers.
At this time there is not one case from the Board of Alien Labor Certification Appeals squarely addressing this issue. This letter is based on an interpretation of the regulations without the benefit of court cases interpreting the issue first.