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How does a company layoff impact the PERM process?

By June 23, 2023PERM
layoff newspaper.

The PERM process allows U.S. employers to sponsor foreign nationals for full-time, permanent employment in the United States. The PERM process can take many months (and sometimes longer, depending on Department of Labor processing times). It is important for the sponsoring employer to understand the rules regarding layoffs and how this can impact the PERM process.

Under 20 CFR 656.17(k),” 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 of the job opportunity involved in the application and the results of the notification and consideration. A layoff shall be considered any involuntary separation of one or more employees without cause or prejudice.”

Under this regulation, “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.”

At what point during the PERM process are layoffs problematic?

If there is a layoff within the 6 months prior to filing the Labor Certification (ETA Form 9089), this can impact the PERM.

Does the location matter, or will a layoff at any employer location impact the PERM?

Under the regulations, the layoff will impact the PERM when it occurs “in the area of intended employment.” This means any area within normal commuting distance of the job and/or within the same metropolitan statistical area (MSA) of the place of employment as outlined on the PERM application.

What if the layoff happened in a different department than the one where the foreign national is working?

Even if the layoff was in a different department, it may still impact the PERM. The relevant inquiry is whether the layoff happened to U.S. employees working in the same occupation or a related occupation as the foreign national who is being sponsored for the PERM. The regulations provide some guidance on this, as they define a related occupation as “any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought.” Employers should work with their attorneys to assess the positions that were laid off and do a comparison of the PERM job to determine if the occupations are related. If it is clear that the occupations are completely different, then the layoff will not impact the PERM. For example, if a law firm was doing a PERM for a lawyer and laid off its administrative assistant, this would not impact the PERM.

If the layoff is in a related occupation in the area of intended employment does the PERM process have to stop?

Not necessarily, but the employer must notify and consider all U.S. workers who were laid off and may potentially be qualified for the job. The regulations do not require any specific method for notifying these workers, but the employer should use good faith efforts to reach out to the worker. The employer must provide the worker with the details of the job opportunity, invite them to apply and provide instructions on how the worker can apply for the job. The employer also has to give the worker a reasonable period of time to submit the application. The employer should carefully document all efforts to reach out to the worker. If the worker applies and the employer determines they are not qualified, the employer should carefully document the reasons why the worker is not qualified.

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