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
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
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
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
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.