DOL PERM FAQs on Notification and Consideration of Laid-Off U.S. Workers

To provide clarity on an important issue regarding recruitment in PERM labor certification (LC) cases, the frequently asked questions section of the U.S. Department of Labor (DOL)’s Office of Foreign Labor Certification (OFLC) was recently updated. In the frequently asked questions (FAQs), under the Recruitment Report banner, the OFLC specifies the steps required as part of the LC recruitment process with respect to an employer notifying and considering U.S. workers previously laid off by that employer.

General Requirements for Notifying Laid-Off U.S. Workers

One of the requirements for submitting an LC application is that the employer first must notify and consider rehiring U.S. workers previously laid off by the company if those employees meet certain criteria. A U.S. worker is entitled to this notification and potential job offer if s/he was terminated from a position in the same occupation as that listed in the LC, and in the same geographic area, within the previous six months.

Means and Timing of Notification Important

The DOL requires that, if the employer has former U.S. workers within the parameters requiring notice and consideration, the employer must directly notify the laid-off workers that the job exists. The employer is required to make a reasonable, good faith effort to provide this notification, which should be provided by mail, fax, or eMail, using the last known contact information for the employee. The notification should contain a full description of the specific job opportunity and invite the worker to apply for the position. The regulations state that the employer must maintain documentation of compliance with these requirements.

Notification at Time of Termination Insufficient

In the FAQs, the OFLC notes that in auditing companies that filed LC cases, most employers were found to be in compliance with the requirements related to notifying laid-off U.S. workers of positions becoming available. However, the OFLC noted that merely informing a worker at the time of termination that s/he should monitor the company’s job postings because a position may open up in the future did not satisfy these requirements. The applicable LCs of companies found to be engaging in this practice will be denied.

Conclusion

The DOL has specific expectations as to an employer’s obligations during the recruitment process. Employers must be certain to follow the necessary requirements throughout the LC process. The attorneys at the Murthy Law Firm are available to assist employers with questions related to this highly regimented area of immigration law.

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