As the job market recovers from the pandemic of 2020, employers will start to rehire, but, if applications for alien labor certification are contemplated, employers must recruit both new and laid off US workers who are able, willing, qualified and available before turning to the foreign labor pool.
As the US job market recovers from the pandemic of 2020, employers will start to rehire, but where foreign workers are concerned, employers must carefully consider not only new job applicants who are able, willing, qualified and available, but also those whom employers have laid off during the previous six months.
While the term layoff in the PERM Rule means an "involuntary separation of a worker without cause," the definition is extended to identify persons who have been laid off in the intended area of employment and in the same or related occupation.
The intended geographical area is determined by a statistical process that establishes normal commuting distances for prevailing wages generally within, to, or from large metropolitan areas but may require consideration of occupational data compiled in more distant areas to achieve proper matching of job duties.
While similar occupations are systematically related by their proximal classifications within the Standard Occupational Code (SOC) (searchable as O*Net), a comparison of the structural hierarchy of key duties or the percentage of time spent in each duty may also be needed to identify related occupations.
Since employers must maintain documentation of dutiful efforts to reach out to laid off workers, notifications should be provided by mail, fax, or e-mail to the last known contact for each. While employers have the burden to inform about job openings, laid-off workers have the responsibility to notify the employer of address changes.
With every new opening, employers should provide laid off workers with full descriptions of each job opportunity and invitations to apply if potentially qualified. Employers with multiple layoffs who use websites for notification must provide a means to search on-line for relevant job openings.
It is important to note that while PERM applications are filed for foreign workers to immigrate to the US for full-time employment, foreign workers with temporary employment visas are not legally qualified to preempt job offers to PERM applicants. The PERM recruitment process only protects citizens, permanent resident aliens, and certain foreign workers with permanent work authorization like refugees and asylees.
The PERM Rule should not be confused with H-1B and other temporary work visas which do provide some limited protections to temporary workers who have been laid-off during contractual periods.
The next PERM article on the impact of Coronavirus will deal with supervised recruitment. When the Department of Labor perceives availability of workers and recruitment efforts are deemed insufficient, it can require new rounds of recruitment and advertising that are more rigorous and demanding than the basic labor certification process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
