Employee Layoffs & PERM Labor Certifications: Things to Know

What are PERM Labor Certifications?

A permanent labor certification (hereinafter “PERM” or “PERM Labor Certificate”) is issued by the Department of Labor (“DOL”) which allows a U.S. employer to hire a foreign worker to work permanently in the United States.  In most instances, the U.S. employer must submit a labor certification application to the DOL’s Employment and Training Administration (“ETA”), before they can submit an immigration petition to the Department of Homeland Security’s U.S. Citizenship and Immigration Services (“USCIS”).  Additionally, the DOL must certify to USCIS that there are not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment.  The labor certification also certifies that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.  In other words, the purpose of the labor certification process is to protect U.S. workers.

Why Does a U.S. Employer Need a Foreign Worker if there have been Layoffs? 

This is a particularly relevant question, given the ongoing impacts of the COVID-19 pandemic on the U.S. workforce—and this is essentially what the DOL is asking in various formats.  The answers lie in the geography, occupations, skills, and timing.  Again, due to the ongoing pandemic, it is plausible for a U.S. employer to have employee layoffs in one location, while needing more employees in another location.  As operations are being consolidated and restructured, the needs of U.S. employers have shifted as their businesses are modified to adapt to changes.  For example, there may be a need to increase in one segment or sector in the business, while downsizing in another.  Should there be an improvement in the economy or an increase in demand for the company’s products or services, the U.S. employer may need to bring back employees or increase their workforce. 

What exactly does the DOL ask on the Application? 

Questions about employee layoffs arise in the context of employee recruitment efforts.  On the PERM Labor Certification Application (ETA Form 9089), the DOL asks, “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?”

Breaking Down the Question

The above question asked by the DOL has multiple components:

• Have there been employee layoffs?
• Did the layoffs occur within the past six months? 
• Were the former employee 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?

Each element of the question must be analyzed individually to determine if the answer is “yes” or not.  If the answer to any of the questions is “yes,” then the U.S. employer is required to try to contact and consider certain potentially qualified former employees for the job opening.  

What is the Relevance of a Layoff in the PERM Labor Certification Process? 

This layoff provision included in the labor certification application is intended to include both reductions in force and downsizing, but also an individual termination.  Layoffs are defined as any “involuntary separation of a worker without cause.”  It does not apply to situations in which the employer has terminated the worker for cause.  

The DOL is concerned with protecting U.S. workers. Therefore, this 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.). Importantly, if no U.S. workers have been terminated, then the answer to the above provision is “no.”

The DOL focuses on the layoffs that occurred within the six months immediately prior to filing the labor certification application. Any layoffs that were more than six months prior to the filing can be disregarded.  

If you have questions on how COVID-19 may impact your immigration matters, be sure to contact Berardi Immigration Law to schedule a consultation with one of our attorneys today!