How do Layoffs and the Impact on PERM Labor Certification Applications Section 20 CFR § 656.17(k)
PERM Labor Certification layoff rules under § 656.17(k) are among the most overlooked compliance requirements. Yet they can derail an otherwise complete application. Employers must take these rules seriously before filing.
What does § 656.17(k) require?
If there has been a layoff by the employer in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought — or in a related occupation — the employer must document that it has notified and considered all potentially qualified laid-off U.S. workers of the job opportunity. The employer must also document the results of that notification and consideration.
What counts as a layoff?
A layoff is defined as any involuntary separation of one or more employees without cause or prejudice. This is a broad definition. Even a single involuntary termination may trigger the requirement if it occurred within the relevant timeframe and occupation.
What is a “related occupation”?
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 being sought. Employers must think broadly when assessing whether a layoff is relevant.
How should employers document compliance?
Employers should maintain written records of every notification sent to laid-off workers and every response received. This documentation must be available if audited. Failure to document properly — even if the outreach actually happened — can result in denial.
What is the process for Documenting Recruitment for Non-Professional Occupations 20 CFR § 656.17(l)
The process for documenting recruitment for non-professional occupations under § 656.17(l) applies to jobs that do not normally require a bachelor’s or higher degree. These positions follow a different — and somewhat simpler — recruitment path than professional occupations. However, simplicity does not mean less risk.
What recruitment is required for non-professional occupations?
For non-professional occupations, employers must place a job order with the State Workforce Agency (SWA) serving the area of intended employment. Additionally, two newspaper advertisements are required. These must appear in a newspaper of general circulation in the area of intended employment.
What are the newspaper advertisement requirements?
If the job opportunity is located in a rural area that does not have a newspaper with a Sunday edition, the employer may use the newspaper edition with the widest circulation in the area of intended employment. All advertisements must satisfy the requirements of § 656.17(f), which include naming the employer, directing applicants to send resumes, and providing a description of the vacancy specific enough to inform U.S. workers of the opportunity.
What Does the Process for Documenting Recruitment for Non-Professional Occupations Require?
Placement of newspaper advertisements can be documented in the same way as provided for professional occupations under § 656.17(e)(1)(i)(B)(3). Employers must maintain all recruitment documentation for five years from the date of filing the Application for Permanent Employment Certification.
Immigration Advertising: Documenting Recruitment Results and the Recruitment Report 20 CFR § 656.17(m)
Documenting Recruitment Results and the Recruitment Report under § 656.17(m) is one of the most important — and most misunderstood — steps in the process. After completing all required recruitment, the employer must prepare a recruitment report that summarizes the results. This report is not filed with the application. However, it must be ready if audited.
What must the recruitment report include?
The employer must prepare a recruitment report in which it categorizes the lawful, job-related reasons for rejection of U.S. applicants. The report must also provide the number of U.S. applicants rejected in each category. Every rejection must be based on a lawful, job-related reason. Rejecting a U.S. worker for any other reason can result in denial.
What are lawful job-related reasons for rejection?
Lawful reasons include failure to meet the minimum education, experience, or skill requirements of the position. They also include failure to respond to the employer’s outreach. Rejections based on subjective factors or factors unrelated to the job are not acceptable.
What if the employer did not receive any applicants?
Even if no U.S. workers applied, the employer must document that recruitment was conducted and that the job was genuinely open. The recruitment report must reflect this outcome accurately.
How Long Must Immigration Advertising Documenting Recruitment Results and the Recruitment Report Be Retained?
Copies of all applications and supporting documentation — including the recruitment report — must be retained by the employer for five years from the date of filing the Application for Permanent Employment Certification.
My Classified Ads LLC expertly manages Immigration Advertising Documenting Recruitment Results and the Recruitment Report for every client. We help you build a clean, compliant recruitment record. Our 24/7 service means we are with you through every step of the process — from ad placement to audit readiness. For more information on Section 20 CFR § 656.17