During the COVID-19 pandemic, millions of Americans have been laid off by their employer and this is particularly important for Employers who are in the process of filing a PERM application.
The whole purpose of the PERM process (also known as the Labor Certification) is for the Employer to demonstrate that it has made a good faith effort to recruit U.S. workers before proceeding with the application and one of the questions on the ETA 9089 form specifically asks Employers if they have had any layoffs in the past 6 months. When filing the PERM application an Employer is confirming that there are no able, willing and qualified U.S. workers available to fill the position.
The mere fact that so many Americans are unemployed right now means that Employers may receive significantly more applications from potential candidates than they would have done pre-COVID-19. An Employer must review and potentially interview these candidates (provided they fall under the definition of U.S. worker-see below), within 14 days of receiving their resumes, and must determine whether the candidates are qualified for the proffered position.
Page 5, Part E, Question 26, of the ETA form asks Employers the following question:
“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 this question is answered “Yes”, then it is undoubtedly going to lead to an audit. When saddled with an audit, a U.S. employer would have to demonstrate that it had made a genuine attempt to offer the position to any laid-off U.S. worker before filing the PERM.
However, just because an Employer has had layoffs in the last 6 months, does not mean that this question has to be answered in the affirmative. Before answering this question, we need to break down the question for further analysis.
Definition of layoff
A layoff means terminating an employee without cause. If an employer has terminated an employee for misconduct this would not be considered a layoff and an Employer would certainly not have to offer the proffered position to this employee. In this case, an Employer would answer the above question as “No”. However, people laid off or furloughed during the current pandemic would require an Employer to answer the above question as “Yes.”
Area of intended employment
This may depend on where the recruitment was done. If the recruitment was done out of the office location and provided for travel to various unanticipated locations throughout the U.S., then the area of intended employment would cover all of the U.S. This means if the proffered position is in Texas an Employer would still need to offer the position to an Employee laid off in say New York because one of the requirements for the position is travel.
Layoffs are only relevant if they are in the same or a related occupation. Therefore, if the proffered position is a Software developer and you have laid off someone in HR, this would not be considered a related occupation and an Employer can check the answer as “No.”
Are layoffs of all personnel applicable or just those of U.S. workers?
The PERM process is intended to protect the jobs of Americans and therefore Employers only need to consider the layoffs of U.S. workers.
A “U.S. worker” is:
-any employee who is a citizen or national of the United States, or
-any alien who is lawfully admitted for permanent residence in the United States is admitted as a refugee under § 207 of the Immigration and Nationality Act (INA), is granted asylum under § 208 of the INA, or is an immigrant otherwise authorized (by INA or by the Attorney General) to be employed in the United States.
Therefore, an Employer who laid-off workers on non-immigrant visas could still answer the question, “No.”
What does an Employer need to do in the event of layoffs of U.S. workers before filing the PERM application?
Having checked “Yes” to the above question, the ETA 9089 form then asks Employers the following additional question (Page 5, Part E, Question 26a):
“If yes, were the laid-off U.S. workers notified and considered for the job opportunity for which the [labor] certification is sought. The purpose of the labor certification process is to protect U.S. workers.”
This means that any U.S. worker, laid off in the 6 months prior to filing the PERM application, who was working in the same/similar job should be notified of the position. As the PERM process relies on good faith an Employer should make every attempt to contact the worker to notify them about the proffered position. This means calling them, e-mailing them and if necessary, mailing a letter to let them know that the position is available. This needs to be thoroughly documented for the purposes of responding to an audit. Where possible, Employers should ensure that when employees are laid off, they are asked to update their contact details, so that they can be notified of future vacancies.
Obviously, if the worker has found another job or is not interested in the position then the Employer can continue with the PERM process. If the worker wants the position and is able, willing and qualified, then the Employer must first hire back that worker before proceeding with the foreign national’s PERM.
Given the current climate and the number of layoffs/furloughs it is possible we are going to see more audits and challenges from the Department of Labor on the above issue.
If you have questions about any of the above please contact our Senior Immigration Attorney, Chris Prescott at firstname.lastname@example.org