The American Immigration Lawyers Association (AILA) has announced some new rules from the US Department of Labor regarding how to handle employee layoffs in the context of a labor certification case. These rules are relatively simple and align with the same rules we have used in the past in this situation. Employers should nonetheless be very careful how the layoffs are handled, especially in areas where foreign nationals are retained as employees.
AILA Doc. No. 21051335 | Dated May 12, 2023
By AILA’s DOL Liaison Committee1
Where an employer has laid off U.S. workers within six months in the same or a related occupation in the area of intended employment immediately preceding the filing of Form ETA 9089, the employer must abide by additional regulatory requirements. These regulations are especially relevant to immigration and global mobility stakeholders during times of macroeconomic uncertainty, as employers may have to conduct layoffs to navigate economic headwinds.
The AILA DOL Committee reminds members that the regulatory provisions and resulting questions on Form ETA 9089 are subject to interpretation. Answers to some of these questions can vary depending on the specific particulars of a layoff. However, in a period where we anticipate increased audit rates and scrutiny from the DOL, it is essential that members engage with clients to discuss their workforce plans, appetite for risk, and broader immigration and employment strategies. This resource serves as a framework for addressing questions where an employer elects to proceed with sponsorship despite the layoff. Notably, due to the increased scrutiny of filings, some employers may pause PERM sponsorship following a layoff to mitigate the potential impact on employees and their PERM program.
What is a layoff?
A layoff is “any involuntary separation of one or more employees without cause or prejudice.â€2 Layoffs are relevant where they impact a U.S. worker or U.S. workers. This includes “personnel actions characterized by an employer as reductions-in-force, restructuring, or downsizing.â€3
What is an Employer?
The employer is generally considered the legal entity for which there is a unique Federal Employer Identification Number (FEIN).4 Members and clients should review this definition carefully with employment counsel and other stakeholders to determine whether a layoff’s impact could be appropriately limited to a single employer/FEIN within the corporate family.
What is a U.S. worker?
A “U.S. worker†is any employee who is a citizen or national of the United States, any U.S. lawful permanent resident, any alien admitted as a refugee under § 207 of the Immigration and Nationality Act (INA), any alien granted asylum under § 208 of the INA, or any immigrant otherwise authorized (by INA or by the Attorney General) to be employed in the United States.
What is the relevant time period?
Layoffs are relevant when they occur within the six-month period preceding the filing of the PERM application.5 There are nuanced questions about when to begin the “clock†for this six-month calculation – specifically, whether the six-month time period begins on the notice date to the U.S. workers of the layoff or the effective date of the U.S. workers’ separation from the company. Members and their clients should carefully review the unique circumstances of the layoff together with employment counsel and determine which date should be controlling. In many cases, the clock would be considered to start on the actual separation date from the company.
Is the location of a layoff relevant?
Additional regulatory requirements are triggered only where the layoff occurred in the area of intended employment.6 The area of intended employment is defined as the area within the normal commuting distance of the place of intended employment or within the same metropolitan statistical area (MSA). As a reminder, no rigid measure of distance dictates what is considered a “normal commuting distance,†Members should consider the specific circumstances of the employer’s operations and the geographical market in which sponsorship is sought when making this determination.7
Traditional employment relationships where an individual is required to be in a physical workspace result in a simple calculus. For example, the layoff of a manufacturing engineer who must be physically present at a production line in Dallas, Texas, would not generally impact the sponsorship of a manufacturing engineer holding the same role at a different facility in Spokane, Washington.
The emergence of telecommuting and remote work has made this determination increasingly complex. For example, the layoff of a 100% telecommuting software engineer living and working in Dallas, Texas, may impact the sponsorship of a 100% telecommuting software engineer living and working in Spokane, Washington. Members and their clients should carefully consider the specifics of their clients’ telework policy to consider its impact on the area of intended employment for the offered role.
How do you identify whether a laid-off worker’s role is/was relevant to the position for which the employer is pursuing sponsorship?
The regulation states that layoffs “involving the occupation for which certification is sought or in a related occupation†require the employer to undergo the “notify and consider†activities discussed below.8 The regulations further define “related occupation†as “any occupation that requires workers to perform a majority of essential duties involved in the occupation for which certification is sought.â€9
Though it is important to interpret this language in the context of the DOL’s focus on the protection of the interests of U.S. workers, members should carefully review whether the impacted U.S. workers had functioned in a related occupation. For example, a hospital system that has laid off only employees working in a call center who were focused on scheduling appointments could proceed with sponsorship for a physician requiring sponsorship because the call center employees were not performing a majority of the same essential duties that a practicing physician does.
Even in more nuanced examples, it may be possible to proceed with sponsorship where legitimate arguments exist that positions do not involve the same essential duties. For example, a software engineer working on legacy mainframe technologies may not perform the majority of essential duties involved in a software engineer position focused on machine learning and artificial intelligence. There is no “bright line†rule established in the regulations, agency guidance, or Board of Alien Labor Certification Appeals (BALCA) precedent for this exercise. Members and employers should review the unique circumstances of each position and remain mindful of the good faith standards that apply across all such factual determinations.
If a layoff is considered relevant, what must the employer do to proceed?
The employer must have “notified and considered†all potentially qualified laid off U.S. workers.10 There is no specified notification method in the regulations or guidance, but an employer should select an option that it believes, in good faith, will reach the individual. Examples would include a FedEx or other certified mailing to a last known residential address, e-mail to the last known e-mail address, or other media that the employer believes will reach the individual. The notification must:
- Provide a full description of the specific job opportunity;
- Include clear instructions to be considered/apply;
- Invite the worker to apply for and be considered for the position;
- Allow a reasonable period of time for the laid-off worker to apply and for the employer to seriously consider the application.
Proactive outreach to impacted employees is generally required. Directing laid-off employees at the time of the layoff to monitor the company’s website or other resources to review openings is not sufficient.11 Employers should obtain the latest contact information for laid-off U.S. workers and inform them of their responsibility to update contact information should it change.
Before engaging in the notify and consider process, we encourage members to engage with client HR stakeholders and to direct those HR stakeholders to speak with their employment counsel regarding any potential sensitivities in completing this process. Where the employer proceeds with notify and consider, the employer should:
- Make a reasonable, good-faith effort to notify the potentially qualified U.S. workers.
- Keep written records of all attempts to reach the laid-off U.S. worker(s) with a uniform method that contains the date and confirmation of receipt. This should include, but is not limited to:
- Reporting on the layoff, including names, titles, and work locations of impacted workers
- Evidence of delivery of notification to relevant laid-off workers
- Detailed records of which laid-off workers responded to the notice
- Resumes for laid-off workers who responded to the notice
- Detailed reasons for lawful disqualification of any laid-off workers who responded to the notice
These records are likely to be requested in an audit and should be carefully reviewed and maintained. On April 12, 2023, BALCA issued In the Matter of Anthem Inc., 2020-PER-00115, which elaborates on the good faith requirement in this context.12 Specifically, BALCA upheld the denial and outlined a framework for good faith considerations:
Requiring employers to timely notify laid-off workers about the job opportunity listed on the application is consistent with the purpose of the regulations. As stated, an employer subject to 20 CFR 656.17(k)(1) must “notify and consider” laid-off workers falling under that provision. “Consideration” of a laid-off worker for the relevant job opportunity imposes an expectation that there will be an application or similar documentation for the employer to consider, should the laid-off worker choose to pursue the job opportunity. So, the employer must notify the laid-off worker about the job opportunity at a time that will allow for the laid-off worker to apply, if the laid-off worker so desires, and for the employer to seriously consider the laid-off worker for the position in a manner that is consistent with good faith recruitment. To hold otherwise would permit employers to circumvent their 20 CFR 656.17(k)(1) duty to consider laid-off workers for the job opportunity by waiting until the time for serious consideration of applicants has concluded to issue notification, thereby frustrating the purpose of the regulation.
Though a standard is not specifically articulated in the decision, it is clear that notifying a laid-off worker immediately prior to filing is not adequate. Members should engage with employers to establish concrete plans for notification and proactively plan for reasonably appropriate notification timelines.
How can an employer identify whether a laid-off worker is “potentially qualified�
The regulations do not define “potentially qualified.†BALCA was recently provided the opportunity to illuminate this question but declined to do so with a narrow focus on form structure and audit procedure in Matter of Fiserv Solutions, LLC.13 There are clues in this decision, however, which indicate that where the DOL Certifying Officer (CO) requests additional information or context related to layoffs in an audit, BALCA will be exacting in its scrutiny.
Members and employers are reminded of the good faith standards14 that apply in all PERM activities, and this standard is especially important to the DOL, where a layoff has adversely impacted U.S. workers. With increased focus on layoffs at the DOL, audit templates are likely to request this information. Employers should carefully document determinations where a finding is made that a laid-off worker in a related occupation was not potentially qualified.
What are the employer’s “consideration†obligations?
Where a laid-off worker has responded to the notification and if the laid-off worker does not possess the minimum education, experience, skills, or is not the best fit for the position, the employer must document the lawful job-related reasons for disqualification in the recruitment report.15
What are the specific questions related to layoffs on Form ETA 9089?
26. Has the employer had a layoff in the area of intended employment in the occupation involved in this application or a related occupation within the six months immediately preceding the filing of this application? Yes/No
26-A. If Yes, were the laid-off U.S. workers notified and considered for the job opportunity for which certification is sought? Yes/No/NA16
Provided by:
David Swaim, Managing Partner
Tidwell, Swaim & Farquhar, P.C.
