Department of Labor Scrutinizing PERM Applications Filed by Industries Affected by Layoffs and Economic Downturn

Department of Labor Scrutinizing PERM Applications Filed by Industries Affected by Layoffs and Economic Downturn - Nov 11

In light of the current state of the economy and financial difficulties facing companies, the Department of Labor ("DOL") has recently stated that it will be focusing its attention on companies in certain industries that are negatively impacted by the economic downturn, including those hit by the "domino effect." DOL will review all reports available to them, including WARN (The Worker Adjustment and Retraining Notification (WARN) Act Guide to Advance Notice of Closings and Layoffs) notices, reports in the media, trade notices, etc.

DOL data created by other DOL entities is also available to the Office of Foreign Labor Certification (OFLC). If DOL finds that a company that is filing PERM applications has been laying off employees or downsizing, DOL will look at U.S. worker availability, especially if the position is for a "roving" employee who is not locally based. These cases will be reviewed with extra scrutiny. DOL may require "supervised recruitment" (application-specific recruitment directed and approved by the DOL) as a result.

DOL urges employers to exercise diligence with regard to the recruitment report and to demonstrate clearly good faith in recruitment efforts. DOL must document that a decision to certify a PERM application is justifiable, especially if the company has had layoffs in the occupation or generally. If a company has had layoffs within six (6) months leading up to filing a PERM application involving the occupation for which certification is sought or in a related occupation, the company must be prepared to document it has notified and considered all potentially qualified laid off U.S. workers of the job opportunity. Note that a related occupation is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which certification is sought. DOL will also look at the existence of industry layoffs, which can affect U.S. worker availability generally, in scrutinizing whether recruitment reports prepared in connection with PERM applications are credible.

In light of this increased scrutiny, we recommend employers:

1. Consider delaying the filing of PERM applications, if possible, if the job offer is in an industry negatively impacted by the economic downturn.
2. Gather and maintain documentation of shortage occupations in your industry to be presented to the DOL in the event of a PERM application audit.

Please contact our firm with any questions regarding this matter and to discuss case specific strategies and timing issues.

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