The Labor Certifications and Employee Layoffs

The Labor Certifications and the Employer Has Had Employee Layoffs

The purpose of the labor certification process is to protect U.S. workers. It is a certification from the U.S. Department of Labor (DOL) that there are no qualified, willing, or available U.S. workers for the offered employment or position.

The labor certification is the first step in most employment-based permanent residence (Green Card) cases. It is important to understand the issues, and eligibility criteria for filing labor certifications after the employer has had employee layoffs.

Questions about layoffs arise in the context of employee recruitment efforts. The DOL asks the following question in the PERM labor certification application (Form 9089):

Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application? If yes, were the laid off U.S. workers notified and considered for the job opportunity for which the [labor] certification is sought?

DOL often asks the question: why would an employer need a foreign worker if there have been layoffs? and it is essentially what the DOL is asking in various formats. The answer lies in geography, occupations, skills, and timing. In this climate, it is quite plausible for an employer to have employee layoffs in one location, while needing additional employees in another location.

This happens when operations consolidate, or otherwise restructure. The needs of the employer often shift as a business is modified to adapt to changes, including the economy. There may be an increase in one segment of the business, with a downturn in another.

Timing also plays a factor. The employer may have the need to lay people off, for example, early in the year. Should there be an improvement in the economy, however, or if the employer adapts and there is an increase in the demand for the products and/or services it provides, then more employees may be needed four to six months later. http://www.greencardapply.com/news/news09/news09_0218.htm


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