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.

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