U.S. employers interested in sponsoring foreign nationals for permanent resident (green card) status in the United States are often required first to obtain a labor certification approval from the U.S. Department of Labor (DOL). DOL issues a labor certification approval to an employer upon proof that the employer has tested the U.S. labor market and has established that no qualified, willing, and able U.S. workers are available for the position the employer would like the foreign national to fill.

In light of the current economic downturn, DOL has indicated that it will focus its attention on those companies and industries that are particularly impacted and that experience significant layoffs or downsizing. DOL is particularly concerned about U.S. worker availability, especially if the sponsored position is for a "roving" employee who is not locally based. DOL will review all available reports, such as WARN notices, media reports, trade notices, evidence of industry layoffs, and so on, as part of its sharpened review of permanent labor certification applications.

Employers in all industries should be mindful of DOL’s enhanced scrutiny, and if employers decide to proceed with labor certification applications they should be prepared to engage in well-documented, good faith recruitment. If DOL determines that a qualified, willing and able U.S. worker exists for a particular position, DOL will not only deny the application but it may subject an employer to other kinds of scrutiny and restrictions regarding future applications. Therefore, employers should exercise diligence when filing a labor certification, particularly when layoffs or downsizing have occurred either on the company-level or industry-wide.