Labor Certification During COVID-19: Layoffs & Labor Market Considerations

An employer seeking to offer a foreign worker a job opportunity on a permanent basis may sponsor that foreign worker for employment-based permanent residency. Most often, this requires Labor Certification through the U.S. Department of Labor (DOL).

The Labor Certification process, also referred to as PERM, requires that employers “test the labor market” to see if there are any qualified and available U.S. workers for its job opportunity, prior to petitioning the foreign worker for permanent residency.

Only if this test of the labor market demonstrates that there are no qualified and available U.S. workers, can the employer sponsor the employee for permanent residency. Because Labor Certification is premised upon a shortage in the labor market, high unemployment can have important implications for this process.

One likely concern an employer may face is if it must conduct a layoff of workers in the same occupation for which it seeks to sponsor the foreign worker.

When filing an application for Labor Certification, an employer must advise the DOL whether it has had a layoff within the last six months of workers, in the area of intended employment, who are employed in the sponsored occupation or a similar occupation.

If an employer has recently laid off workers in the same or similar occupation in the area of intended employment, the employer must take additional steps to notify the laid off workers of the job opportunity and consider them for the position. Only if each laid worker is determined to be unqualified or unavailable for the job opportunity can the application for Labor Certification be filed on behalf of the foreign worker.

Additionally, indicating “yes” on the application that the employer has had a laid off but nevertheless still faces a shortage of workers is very likely to trigger an audit request from the DOL.

Another concern is the notice requirement. Prior to filing an application for Labor Certification, employers must provide notice to the bargaining representative for the sponsored position, if applicable. If there is no bargaining representative, the employer must post a physical notice at the worksite advising workers of the employer’s intent to file the application and providing the DOL address to which workers may send information bearing on the application. If a worksite or office has been closed due to COVID-19, then although a physical posting at the worksite would technically follow the letter of the regulation, it will not actually provide notice to workers and is not compliant with the spirit of regulation.

Where the specific intended worksite for the sponsored position has been closed to workers, the employer should consider providing an additional electronic notification to the relevant workers, such as by email or other internal communication system. The regulations specifically permit employers to provide notice this way, in addition to, but not instead of the physical posting.

Finally, employers may want to be prepared for a possible uptick in audit requests from DOL and even requirements for employers to conduct supervised recruitment.

The Labor Certification process is primarily an attestation-based process. Employers are required to comply with the required regulatory steps, maintain documentary evidence of the advertisements completed and other relevant documents, and act in good faith in recording responses and maintaining evidence of its review of applicants. But employers are not required to demonstrate compliance unless and until they receive an audit.

In times of widespread layoffs and high unemployment then, Department of Labor may be more inclined to require employers to “show their work” and provide documentary evidence, such as through an audit, that establishes their test of the labor market and the shortage of available U.S. workers.

For that reason, employers who are considering sponsoring foreign workers through Labor Certification at this time are encouraged to make extra efforts to maintain clear, complete, and organized compliance files and to be conservative when making judgements calls about how to comply with DOL’s regulations, which often lack clear guidance, in these emergent situations.

If you have questions about sponsoring foreign workers through Labor Certification, please contact Kolko & Casey, P.C. at (303) 371-1822 for a full legal consultation with an experienced immigration attorney.