Labor Certification In a Weakened Job Market
Even in a recession, it is plausible for an employer to need additional employees while other companies seek to reduce workforce. A company may also be hiring in one geographical region while reducing workforce in a different geographical area, or see growth in one division while another experiences a downturn. Therefore, even at a time when the general labor market is weak, there may be legitimate reasons to file applications for Labor Certification (LC). The weakened labor market, however, certainly brings up questions:
We have not laid-off anyone. Does the labor market condition affect our plans to file?
LC is certification from the US Department of Labor (DOL) that the employer conducted adequate recruitment in the local job market and despite the recruitment effort, there were no qualified and willing US workers for the position offered to a foreign national employee. Therefore, even for companies fortunate enough to be adding employees, a weak job market will likely result in more US applicants who are qualified and willing to accept the position.
Qualified US candidates applied for the positions. What happens now?
This means you are unable to prove a shortage of qualified and willing US worker for the position you would like to certify and the LC cannot be filed. The company can re-test the labor market when the market improves.
Our company went through a RIF last month. Can we file a LC?
Yes, although the process may be more complicated. First, if the company has laid-off anyone in the same or related occupation and in the same area of intended employment within the 6-month period immediately preceding the filing of a LC, the company must take the additional step of contacting and considering the laid-off US employees as potential candidates.
If the RIF did not affect the position the company would like to certify, or it did but not in the area of intended employment, the additional steps to contact and consider the laid-off US employees do not apply.
How do I determine whether the positions affected by our RIF and the position we would like to certify are related occupations?
A related occupation is any position that involves a majority (i.e., greater than 50%) of the essential duties of the sponsored position. Oftentimes, the determination of whether two positions are related will be difficult to make. Employers should consult the attorney and be prepared to support its determination.
How do I determine if two areas are in the same area of intended employment?
If the two worksites are within “normal commuting distances,” they are in the same area of intended employment, even if they are in different cities or counties.
Our company recently filed LCs and now we are laying off workers. Do I need to withdraw or change our pending applications?
No. A layoff that occurs after the test of the job market does not change a pending application.
How else can the labor market condition affect pending LC applications?
DOL processing time may become longer as it devotes more resources to perform “audits” to ensure employers have recruited adequately and considered all US candidates.
It is also possible that DOL may subject some companies to “supervised recruitment.” This would require a company to repeat the recruitment process, but this time DOL will instruct the employer on when and where to place the recruitment ads and the ads will instruct applicants to submit their application/resumes to the DOL. DOL will then forward the applications to the employer for consideration.
Do you have any other general advice to share?
Yes. We believe DOL and USCIS (during I-140 processing) will increase scrutiny not only of recruitment activities, but they will also scrutinize employers’ review of US applicants more closely. Therefore, it will be more important than ever for employers to not only dutifully document the recruitment process, but to also document how it properly considered US candidates that applied for the position (i.e., save the resumes/applications that were received, document contacts between the employer and candidates with emails and/or phone records, and obtain and keep written reports as to why rejected candidates failed to meet the position’s requirements).