FAQ: Tech Layoffs & Immigration Implications for Existing Employees

Layoffs are brutal for everyone. In the U.S. immigration world, there is often even more fallout. One such area of fallout concerns an employer's ability to continue Green Card processing for its employees. This obviously causes severe stress for individuals.

At ImmiPartner we are seeing many questions around the topic of Green Card sponsorship and the implications of potential and actual layoffs from employees who remain at their employers. As a result, we are creating a set of FAQs on this topic for individuals to consider. Let’s take a look at some of the common Green Card questions for existing employees:

If I was not laid off and my PERM has already been filed, prior to any layoffs occurring, will my case be impacted in any way by my employer laying off other individuals? 

No, the regulations specifically relate to any layoffs occurring within the 6 months PRIOR to a PERM application being filed. This is a question asked directly on the 9089 PERM filing, at the time of that filing. Once the PERM has been filed, there is no requirement to notify the Department of Labor about subsequent layoff activity on that specific case. 

My PERM was recently approved, and my employer is preparing to file the second step, the I-140, and if possible, the Adjustment of Status (I-485), but we just had layoffs. Will my case be impacted? 

No, layoff actions only impact the company’s ability to file PERM applications.

My employer just started the PERM process for me and has now announced that they are having layoffs. How long will my case be delayed? 

The Department of Labor regulations regarding layoffs, during the PERM process, only impact the ability to file the PERM application. You may still be able to proceed with pre-filing PERM steps such as establishing the minimum job requirements, securing employment verification letters, and requesting a Prevailing Wage Determination. This often comes down to specific timing requirements and a careful consideration of whether your role is in fact the same or similar to the role in which there were layoffs.

My employer has gone through some layoffs and has just placed the various required ads related to the PERM labor market test. How is my case impacted? 

If the layoffs were in the same job and/or same geographic location as your job, you will most likely experience a delay of approximately 4-6 months and the recruitment ads will likely need to be re-run. Your employer may be unable to file a PERM for your job or geographic location for a period of 6 months following the effective date of the layoff. Additionally, when a PERM application is filed, any recruitment ads must have been placed within the 6 months prior to filing the PERM. This is a complicated situation which needs to be carefully handled with experienced counsel. It is also worth noting that there is a method by which a company does not need to wait for the full 6 months, assuming they satisfy some additional recruitment requirements related to making the specific laid off workers aware of the open role. 

My company is going through layoffs, but I work remotely in a different state, can my employer still file my PERM application? 

There are many factors that go into analyzing whether a PERM application can continue or must be paused following company layoffs. If you work in a location that is not affected by the layoffs, there is a possibility that the company may be able to file the PERM application without delay. However, if your company employs a broad telecommuting or “remote first” policy, you may still be impacted by the layoffs. Your company’s Immigration Counsel will provide instruction to your HR or Immigration Management team on how to assess layoff impact in light of remote work policies. You should also be well educated on these rules to understand the implications.

My company closed a specific product/service division that I am not a part of. Can I still have my PERM application filed? 

If your specific department was not impacted by a layoff, there is a possibility you may be able to continue with the PERM process without significant impact. The Department of Labor regulations governing layoffs in the PERM context are focused on the jobs eliminated. If there is significant overlap between your job and a job that has been eliminated, even if it is in a different department, you may still be impacted. This scenario requires a carefully assessment by qualified counsel to see whether specific cases can move forward or must be paused. 

My company is having layoffs but the individuals being laid off have different job titles than me, will my PERM application process be impacted? 

The Department of Labor regulations strictly limit a company’s ability to file PERM applications for cases in which there has been layoff activity in the same or similar occupation or geographic location within the 6 months immediately proceeding filing. Case law confirms that the assessment must be toward the core function of the job and not job title itself. If there is a significant overlap between your job and the jobs that have been laid off, it is likely that you will experience a delay in your PERM processing. 

I am on H-1B, and my six-year limit is fast approaching. My company just recently went though a round of layoffs. What happens if I cannot file the PERM due to layoffs? 

The US Citizenship and Immigration Services regulations allow for continued H-1B renewals after the initial 6-year period IF a PERM application has been FILED at least 365 days prior to the expiration of 6 years. Post-6th year H-1B renewals are also available for individuals who have an approved I-140 with a Priority Date that is not current, regardless of when a PERM application was filed. The 6-year limitation is based on physical presence in the United States (e.g., time spent outside of the U.S. does not count). Therefore the primary issue to determine is whether there has been layoff activity in the same or similar occupation to yours in the same geographic location within the 6 months immediately proceeding the intended filing of your PERM.

My company had layoffs 7 months ago. Does that impact my PERM application? 

The Department of Labor regulations concerning layoffs in the PERM context relate only to layoffs happening within the 6 months immediately prior to a PERM filing. If layoffs happened more than 6 months ago, they no longer need to be considered and do not impact the PERM process. 

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