PERM Requirement of “Notify and Consider” to Laid off Workers

The PERM foreign labor certification system requires employers who intend to hire a foreign worker as an employee to attest that it has not found any able, willing, qualified, and available U.S. workers to take a prescribed position that the employer seeks to fill. Generally speaking, that entails showing that the specific requirements of the employment position cannot be met by merely American applicants within a particular geographic area of the location of the intended job.

But in the last few years, particularly since the financial crisis of 2008, many companies have laid off its own workers, many of whom continue to live in the geographic area near their employer’s job site. This raises the question of how an employer, when posting a new job notice, must notify these laid-off workers of the new opening and what kind of notice satisfies the Department of Labor’s (DOL) rules concerning PERM compliance. What kind of burden should the employer meet to ensure laid-off workers be considered for a new position before such a job can go to a foreign worker? 

A consolidated Board of Alien Labor Certification (BALCA) case involving PERM labor certifications filed by Microsoft Corporation on behalf of several of its employees should generate an answer to this question. The DOL requires that employers who have laid workers off during the six-month period prior to filing a PERM labor certification must “notify and consider” potentially laid-off workers in the same geographic area of intended employment of the job opportunity.”  Microsoft claims that it invites its terminated employees to visit its website to find out what new job positions become available and to apply, if qualified, for such positions. Recently the DOL issued a ruling that such notice was insufficient although it is a practice Microsoft and other companies have followed for several years since regulations regarding PERM were established in 2005.

Now that Microsoft and various immigration advocacy groups have sought a judicial clarification regarding the DOL’s enforcement of its rule pertaining to laid-off workers, employers may, within the near-term, have better guidance as to what notice suffices in these instances.

The attorneys of U.S. Immigration Law Group, LLP possess the requisite experience to assist employers successfully to sponsor foreign workers in the United States. Contact U.S. Immigration Law Group at (714) 786-1166 or visit our website. Our offices are located at 1913 E. 17th Street, Suite 204, Santa Ana, California 92705.