DOL Policy on Laid-Off U.S. Workers for PERM Labor Certification Applications

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The filing of a labor certification application is normally the
first step when an employer sponsors a foreign national employee
for permanent residence. Under the labor certification process,
the employer is required to demonstrate that it unsuccessfully
conducted a good faith recruitment of the US labor market at the
prevailing wage before it can proceed to sponsor the foreign
national employee. "color: windowtext; font-family: "Arial","sans-serif";">
The Department of Labor, under the slim authority given to it in
INA 212(a)(5) has promulgated complex rules in 20 Code of Federal
Regulations (CFR) Part 656 that govern how an employer must
establish a good faith test of the US labor market. These rules,
which have created a huge “labor certification
bureaucracy”, also reflect a concern for US workers who
were laid off within 6 months of filing the labor certification
application. Specifically, 20 CFR 656.17(k)
provides:



  1. "color: windowtext; font-family: "Arial","sans-serif";">
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    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 (employer
    applicant) 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.

  2. For the purposes of paragraph (k)(1) of this
    section, 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.



The requirement for an employer to have notified and considered
all potentially qualified laid-off workers has always been a
touchy issue for employers. It is easier for an employer to
broadcast advertisements and undertake other prescribed
recruitment steps for prospective US workers than for an employer
to contact its own prior workers regarding a job opportunity that
is the subject of the labor certification application. The
notification requirement of all laid off workers in the specific
occupation or related occupation has also been open to varying
interpretations. Would it suffice if the laid off worker was told
to check job opportunities in the future on the employer’s
website or must the worker be actually notified when labor
certification is being sought in the same job opportunity? The
Department of Labor's Employment and Training Administration has
added a "http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#recrep2">new
question and answer (Q&A)
to its frequently asked
questions (FAQ). The new Q&A concerns notification and
consideration of laid-off U.S. workers for PERM labor
certification applications.


The new Q&A asks, "How does an employer
demonstrate that it notified and considered laid-off U.S. workers
for the job opportunity listed on the ETA Form 9089?" The answer
notes that some employers have misconstrued the regulations to
require only that they inform workers when laid off that the
employer may have future positions and invite the worker to
monitor the employer's job postings and apply, rather than their
actively notifying and considering the laid-off workers. In fact,
the Q&A notes, misapplication of the regulatory requirements
will result in denial of a PERM application. The employer must
make a reasonable, good-faith effort to notify each potentially
qualified worker who has been laid off during the six months
preceding the application whenever a relevant job opening exists
and invite the worker to apply.



The Q&A notes that an employer who files multiple labor
certifications can satisfy its responsibilities under the
relevant regulation by notifying each laid-off worker (in the
manner chosen by the worker) at least once a month that a list of
current relevant job openings is maintained electronically on a
website operated by the employer. "Simply informing a laid-off
worker to monitor the employer's website for future openings and
inviting the worker, if interested, to apply for those openings,
will not satisfy the employer's regulatory obligation to notify
all of its potentially qualified laid-off U.S. workers of the job
opportunity," the Q&A states.


The Q&A adds that an employer must maintain
documentation showing that it has met its notice and
consideration requirements, including copies of all relevant
letters, e-mails, faxes, Web pages (including those listing
details of the relevant job openings and applications by laid-off
workers for those openings), and other contemporaneous documents
that show when and how notice and consideration was given. In
addition, an employer must obtain and maintain written
documentation that a laid-off worker has declined to receive
notices, requested discontinuation of the notices, or refused to
give or update contact information.


While the DOL has clarified the notification
requirement for laid-off workers, must an employer contact all
laid off workers in the specific or related occupation for which
labor certification is sought even if the employer knows that the
laid-off worker’s qualifications do not objectively meet
the requirements of the position? For example, the job
opportunity for which labor certification is being sought,
let’s say a Software Engineer, requires five years of
experience in certain computer programming languages like C++,
Java and Python. The employer knows that a former worker, also a
Software Engineer, who was laid off 3 months ago only had 1 year
of experience in C++, but not Java and Python. Is the employer
required to notify this worker under 20 CFR 656.17(k) when the
employer knows that the laid off worker is not qualified for the
position?


The employer must also check off a box on ETA
9089, Section 1.e.26, *which broadly asks whether the employer
had a layoff in the area of intended employment in the occupation
of the job opportunity or a related occupation within 6 months of
filing the application. The checking off the “yes”
box is likely to trigger an audit and further scrutiny. The next
box Section 1.e.26A, asks “were the laid off U.S. workers
notified and considered for the job opportunity for which
certification is sought?” If the employer checks off the
“no” box or the “NA” box, would that be
permissible if the laid off worker is clearly not qualified for
the position? **In other words, when an employer knows that a
laid-off worker is not potentially qualified, may it only
consider the worker’s qualification or does it also need to
notify that prior worker? If the labor certification is audited,
the DOL will request documentation to establish the number of US
workers in the occupation or in a related occupation that were
laid off by the employer; a listing of all occupations relevant
to the layoffs; an explanation as to why notification or
consideration of the employer’s potentially qualified
laid-off US workers was not applicable; and proof that any laid
off US workers not notified and considered by the employer were
not potentially qualified for the job opportunity.


The Board of Alien Labor Certifications in
"http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/02/11/balca-on-rejection-of-u-s-worker-matter-of-federal-home-loan-mortgage-corp.aspx">
Matter of Federal Home Loan Mortgage Corp
,
2011-PER-02902 (BALCA February 10, 2014)* held that an employer
was justified in rejecting a laid-off worker who was not
qualified for the position. While it is not clear from this
decision whether the employer had notified the laid off worker,
it is clear from the resume that the laid off worker was not
qualified for the position, according to BALCA. The position in
the instant case required a very deep knowledge of SAS, including
SAS on Unix and SAS for Windows. The laid-off worker did not have
experience with these program tools. Although the Certifying
Officer in denying the labor certification assumed that the laid
off worker would have obtained the same skills and knowledge for
the position for which labor certification was sought, having
worked with the employer for three years, BALCA found that the
CO’s assumption was unfounded and unsupported by the
record. "http://www.kidambi.com/resources/BALCA%20043013.pdf"> "">Cisco Systems, Inc, 2011-PER-02900 (BALCA April 26,
2013), however, provides more clarity regarding whether an
employer needs to notify a laid-off worker who is not qualified
for the position. There BALCA held that the employer who had not
notified a laid-off worker was justified in its rejection of that
worker who clearly lacked the qualifications for the
position.


It may thus be defensible for an employer to not
notify all laid off workers in the occupation for which labor
certification is sought, or a related occupation, unless the laid
off worker is potentially qualified for the position. Of course,
when in doubt, the employer must contact the laid-off worker per
the new DOL FAQ. Unfortunately, in the world of labor
certification, the DOL imposes unrealistic requirements and
burdens upon employers, and one can never know how the DOL will
react when an employer justifies that its reason for not
notifying laid-off workers was because they were unqualified for
the position. "http://blog.cyrusmehta.com/2014/01/the-decline-of-deference-balca-does-not.html"
target="_blank">The DOL has publically indicated that BALCA does
not speak for it,
and it may not consider itself to be bound
by "http://www.lexisnexis.com/legalnewsroom/immigration/b/insidenews/archive/2014/02/11/balca-on-rejection-of-u-s-worker-matter-of-federal-home-loan-mortgage-corp.aspx"
target="_blank">Matter of Federal Home Loan Mortgage
Corp or Cisco Systems
. Therefore, employers are advised
to tread very cautiously when workers have been laid off within
six months prior to filing a labor certification on behalf of a
foreign national employee.


Originally published by "http://blog.cyrusmehta.com/2014/02/dol-policy-on-laid-off-us-workers-for.html?m=1" target="_blank">The Insightful Immigration Blog, reprinted with
permission.






About The Author





Cyrus D Mehta


Cyrus D. Mehta,as an immigrant himself, Cyrus was interested in immigration law long before becoming an immigration lawyer. After receiving his Bachelor's Degree from St. Xavier's College, Bombay University, he moved to the United Kingdom to attend Cambridge University and later to New York to receive his LLM from Columbia Law School. In late October 1993, he founded Cyrus D. Mehta & Associates, PLLC, where he has a diverse practice, not only handling business immigration matters, but also individuals in deportation and removal proceedings, family matters, and naturalization cases.From 1997 to 1998, Cyrus was the Chair of the American Immigration Lawyers Association's Young Lawyers Division, winning the Joseph Minsky Young Lawyers Award in 1997 for outstanding contributions in the immigration field. In addition to managing his law firm, Cyrus has a passion for public service. He was the Chair of the Committee on Immigration and Nationality Law of the New York City Bar Association from 2000 to 20003, which was a very interesting experience after the 9/11 attacks. He was also the Chair of the Board of Trustees of the American Immigration Council from 2004-06 where he addressed immigration policy concerns and impact litigation issues for the bar. He is the past Chair of AILA's Pro Bono Committee and former Co-Chair of the AILA-NY Chapter Pro Bono Committee. Cyrus continues to be active in coordinating pro bono projects and received AILA's 2010 President's Commendation for Leadership of AILA's Pro Bono efforts. In 2011, he received AILA's Michael Maggio Memorial Award for his outstanding efforts in providing pro bono representation in the immigration field.







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