Handling Previous laid-offs on Perm Labor Certificate application

WorkVisaWhen an employer files PERM labor certification application, if there were employees laid off by the employer during the past six months of filing the application, the employer must provide notice to and consider for hiring those workers laid off by the employer.

Such notice and consideration must be given to all employees laid off during this period who worked in the occupation in the area of intended employment for which certification is sought or who worked in a related occupation. 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. An employer must maintain and, if requested, submit documentation establishing that it notified and considered all potentially qualified U.S. workers it laid off during the six months before filing the application. The employer must include the results of its notification and consideration of these laid-off U.S. workers in its recruitment report.

Where a U.S. worker who is potentially qualified for the job opportunity has been laid off by an employer during the six months preceding the application, the employer must directly notify the worker of the job opportunity and consider the worker if he or she applies for the job. The employer must make a reasonable, good-faith effort to notify each of the potentially-qualified laid-off workers that a relevant job opening exists. Notification should be provided by mail, fax, or e-mail, using the last known contact information for each worker. The employer must provide each worker a full description of the specific job opportunity and must invite the worker to apply for the position for which he or she is potentially qualified.

At the time a worker is laid off, an employer should secure from the worker appropriate contact information to permit the required notification and consideration. The employer must inform the worker that it is his or her responsibility to apprise the employer of any change in the contact information. The employer may inform the worker that he or she may decline to receive or, upon the worker’s later request, discontinue such notification. Where a worker declines to receive such notification, the employer will be deemed to have met its notification and consideration obligations. Where a worker requests that notification be discontinued, the employer will also be deemed to have satisfied its notification and consideration obligations for the remainder of the six-month period.

An employer who files multiple labor certifications can satisfy its responsibilities under the regulation by notifying each laid-off worker (in the manner chosen by the worker) not less frequently than once monthly that a list of current relevant job openings is maintained electronically on a website operated by the employer. Where an employer chooses this alternative, the website must list or allow the worker to easily search for all the relevant job openings. Where a list is used, job openings must be identified by title and location and provide a hyperlink through which the worker may obtain a detailed description of, and the minimum requirements for, each position and apply for the position if he or she so chooses.

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.

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.

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