When an employer decides to apply for a permanent visa ( green card) for a foreign national employee , depending on the category used, a certification from the Secretary of Labor that the employer has tested the labor market and has been unable to find qualified U.S. workers, is needed to support the visa petition. To obtain this labor certification, the rules require the employer to follow Program Electronic Review Management (PERM) process which includes strictly prescribed recruitment and reporting rules to ensure that they have tested the U.S. market for a qualified, available and interested U.S. workers, were unable to find any, and have therefore employment of the foreign national employee is required to fill the position.
If an employer has had lay offs in the six month period prior to filing the application for a permanent visa, the employer must also be sure they have notified and considered hiring any qualified laid off U.S. workers. Qualified laid off U.S. workers could be those who worked in the same, or related, occupation as the one for which certification is being sought.
In their updated FAQs the DOL clarified that, to meet the notification requirements, "Simply informing a laid-off worker to monitor the employer's website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer's regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity." Instead the DOL stipulates "The employer must make a reasonable, good-faith effort to notify each of the potentially-qualified laid-off workers that a relevant job opening exists. Notification should be provided by mail, fax, or e-mail, using the last known contact information for each worker. The employer must provide each worker a full description of the specific job opportunity and must invite the worker to apply for the position for which he or she is potentially qualified."
Employers faced with future lay offs must be sure to consider what processes they will put in place to be sure that they can meet these notification requirements.