In face of layoffs, most employers shy away from filing PERM applications under the erroneous perception that the PERM regulations prevent them from doing so. This article discusses the consequences of layoffs and processing PERM labor certification applications; it also discusses the employer’s legal obligations in proceeding with the PERM application process despite recent layoffs.
I. PERM and Layoffs
The collapse of the financial infrastructure in the US has had a Domino effect on every sector in our economy. As a result, many organizations find themselves in economic crisis which resulted in massive layoffs almost in every aspect of our workforce. Notwithstanding layoffs, organizations still desire to process permanent labor certificate applications on behalf of certain foreign national professionals. PERM regulations, however, place certain restrictions on organizations and firms which experienced layoffs that could prevent them from taking advantage of this program.
II. History of the PERM Process
PERM stands for Permanent Electronic Review Management introduced by the US Department Labor in March of 2005 to replace the prior process which had been in existence since the 1980’s. The regulatory directives of the PERM process evolved from a predecessor process called Reduction In Recruitment (“RIR”). Even though PERM regulatory provisions have their roots in the prior RIR process, RIR itself was an ad hoc administrative procedure introduced by the USDOL during the Y2K era. At that time, there was a documented shortage of certain professionals in the information technology filed which necessitated an agile administrative process for the permanent employment of certain foreign professionals. Hence, RIR was a modification of a prior process known as “supervised recruitment” for labor certification which was truly an administrative nightmare including overlapping steps between the State Workforce Agencies (“SWA”)and the US Department of Labor. The SWA’s approved the recruitment language and mode of recruitment and supervised all the resumes received throughout the recruitment process itself. It took more than 2 years to process a Labor Certificate application prior to the introduction of RIR. The most important aspect s of RIR process that survived the PERM regulations are the idea that all recruitment for the labor certificate application must precede the filing of the application itself.
III. Current Regulatory Directives and Layoffs
PERM regulatory provisions under 20 CFR §656.17(k)(1) require employers to provide notice and to consider all similarly situated U.S. workers which it had laid off within the same geographical area in the six months immediately preceding the filing of the labor certification. Put in different words, an employer may not successfully file a labor certificate application unless it engages in a specific process for consideration of all qualified US workers which it had laid off in the six months prior to filing the labor certificate application on behalf of a foreign national for a particular occupational classification. This process is intended to prevent US workers from dismissing US workers and replacing such US workers with foreign labor who are perceived to accept less favorable working conditions and compensation. This specific regulatory provision was not necessarily mandatory in the pre-PERM rules governing the RIR process. However, the Certifying Officer had authority to deny or remand the labor certificate application for additional recruitment if he believed that the specific occupational classification experienced layoffs within the geographic area. Hence, it is important to note that the current regulatory provision is an extension of the prior position the US Department of Labor had regarding layoffs.
It is important to remember that the PERM regulations have two important criteria that must be examined more closely. If there have been layoffs in the geographic area in the occupational classification that is the subject of the labor certificate application that the employer must notify and consider all qualified US workers who had been laid off within the prior six months. It is thus critical to understand in great detail what is considered layoff, the geographic area, and the particular occupational classification.
IV. Layoffs Defined in the PERM Regulations
The definition of layoff is rather expansive and it includes any involuntary separation of one or more employees without cause or prejudice. Any such separation that is characterized as “attrition,” “reduction in force,” “downsizing” or “restructuring” which results in the loss of US workers without cause is covered as layoffs pursuant to USDOL directives.
V. Occupational Classification Defined
In analyzing the effect of company layoffs on the manner in which the PERM application should proceed and in deciding whether the employer has an obligation to “notify and consider” qualified US workers who had been laid off in the six months prior to the filing of the PERM application it is important to understand how the regulations define the same occupational classification. If the employer is able to distinguish the occupational classification on which the PERM application is based, then it will not be subject to the “notify and consider” requirements. The regulations define an occupational classification is rather expansive, however. More specifically, the regulations focus on the “majority of the essential duties” not necessarily on the title of the position in question to determine whether the position giving rise to the PERM application is the same or “related” occupation. If comparison of the majority of the essential duties between the occupation for which PERM is sought are the same or similar to position wherein a US worker was laid off within the prior 6 months, then the employer is required to “notify” and “consider” US workers who were laid off within the six months prior. On the other hand, if the comparison between the position on which the PERM application is based and those of the laid US workers yields a significance in the majority of duties, then the employer is absolved from notifying or considering any US workers who had been laid off within the prior six months.
ACME Insurance Company is desirous to file a PERM application for a Programmer Analyst who works in its IT Department in the Washington DC. The immigration counsel was advised that the company laid off 150 employees within the last 90 days. The immigration counsel was concerned whether these employees need to be notified considered pursuant to regulations since they were laid off within the last six months. Upon examination of the position description of these laid off employees, it was discovered that they all were call center operators and not connected in any manner to the information technology field. On that basis, the immigration counsel determined that the “notify and consider” provision of the regulations does not apply.
It is for that reason that qualified and skilled immigration counsel should be consulted to make certain that the position giving rise to the PERM application is not considered similar or related to any potential position that has been or may be subject to layoff. It is that kind of planning that could make or break a PERM application in the face of today’s layoffs.
VI. How Does the Employer Effectively “Notify and Consider” Laid Off Workers?
As mentioned, under PERM regulations, the employer wishing to file a PERM application for a foreign national whose job duties are similar or are related to that of US workers who were laid off or terminated without cause within the six months preceding the filing of a labor certificate application, must notify and consider such qualified US workers for the specific position. But what constitutes acceptable norms of notification and consideration? The answer is not clear in the regulations as they do not specify how the employer is required to notify such laid off US workers. The American Immigration Lawyers Association attempted to find out through liaison communication as to what the USDOL considers sufficient forms of notification. Would email, phone calls, or other forms of written communication suffice? The USDOL had not responded in approval to any of the aforementioned methods. Hence, it continues to be a mystery as to what constitutes proper notification methodologies. Competent immigration counsel will make certain that the employer documents every conceivable mode of communication with US workers to make certain that its attempts are considered within the realm of “good faith recruitment efforts” which underlie the PERM process.
VII. “Potentially Qualified US Workers” Defined
US Workers are defined as US Citizens, US Permanent Residents, Refugees and Asylees. The regulations again do not define who is considered to be a “potentially qualified Worker” for purposes of the “notify and consider” requirement. It is worthy to note that the regulations seem to consider an expansive approach to the evaluation as to who needs to be notified. In other words, the regulations did not say that only those who are qualified for the position need to be notified of the job opportunity; rather the regulations stated, that all those who are “potentially” qualified will need to be notified and considered for the job opportunity giving rise to the PERM application.
The requirement of notification and consideration should work in this manner:
1. Employer finds out that the occupational classification giving rise to a PERM application is significantly similar or identical to one that was the subject of layoffs within the 6 months prior to the filing of the application;
2. The employer further determines that only a portion of those laid off were within the same geographical area where the position in question will be performed.
3. The employer examines the qualifications of all US workers within such occupational classification and determines who may be potentially qualified.
4. The employer notifies such US workers that it is about to file a PERM application for the particular occupational classification. In doing so, the employer makes a good faith effort to discover the employment
5. US Workers submit resumes in response to the notification process. The employer should then consider such resumes and should conduct interviews to determine whether such qualified, willing and able US workers exist to fill this position.
Important Note: If this process yields a US worker who is qualified, the employer needs not hire this US worker as the PERM recruitment process is fictitious in nature and is only intended to test the market as to the availability of willing, able and qualified US workers to occupy the position giving rise to PERM application. If such qualified US worker is found, the application is deemed unapprovable at this point. Hence, the employer is not at risk of having to accept the employment of someone it had previously laid off as a result of the PERM process.
6. The employer carefully documents all its efforts and procedures in the evaluation, notification and consideration processes.
Undertaking filing a PERM application in today’s economic conditions may be a daunting task. As an organization begins to plan for the PERM process, it may not know that next month will result in layoffs. Hence, the decision as to move forward with the PERM recruitment and filing is one that must be taken with the guidance of experienced immigration counsel. Once the correct analysis is made, the company will be better equipped to make this decision. The attorneys at The Law Firm of Shihab & Associates, Co., LPA are experienced in all facets of the PERM process. They have processed more than a thousand PERM, RIR and supervised recruitment applications in their careers. Contact The Law Firm of Shihab & Associates, Co., LPA. at 1-877-479 4USA for a free initial consultation.