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In administering the labor certification program, the Department of Labor is responsible for ensuring that the admission of foreign workers will not adversely affect the job opportunities, wages, and working conditions of US workers. In order for a PERM case to be certified, the DOL must be satisfied that there are insufficient qualified U.S. workers for the occupation in the area of intended employment. The Department of Labor is required to consider the implications of a downturn in the economy when deciding whether PERM certification is justifiable. As a result, DOL will closely examine employers, industries and occupations that have been negatively impacted.
The PERM regulations directly address layoffs in Section 656.17(k)(1) and require employers that have experienced a reduction in force (in the area of intended employment within 180 days prior to filing a labor certification application), to attest that the company has notified and considered potentially qualified U.S. workers involved in the layoff. Employers are also required to document the results of such notification. Although most employers will choose not to file a PERM application within 180 days of a layoff, some may need to move forward with filing an application in certain situations (for example, in order to secure an extension of the employee’s non-immigrant visa status). Recently, DOL has indicated that they are not only scrutinizing companies that are known to have experienced layoffs, but they are also carefully examining PERM applications filed by companies within industries that have been hard hit by the current economic downturn. This includes industries that have been hit by the "domino effect." They are also looking closely at cases involving certain occupations. DOL has stated that they may audit or require supervised recruitment of such cases and urged employers to exercise diligence and good faith in their recruitment efforts. Employers must be mindful that DOL is aware of current labor market conditions and the availability of recently terminated workers in these fields and should be prepared to provide supporting documentation to defend themselves against increased scrutiny by DOL. Curran & Berger will continue to advise our clients with the most up to date information on DOL policy and practice and will work closely with any companies that have been affected by the current economic conditions. |
