HR Guide: How do layoffs impact Foreign National Employees' PERM?
The PERM process is the first critical step in obtaining permanent residency (green card) for your foreign national employee. This is a three-step process - (1) Prevailing Wage Determination (2) Job Advertisement/Recruitment and (3) Labor Certification - where the employer needs to demonstrate that there are no qualified U.S. workers (U.S. citizen, Lawful Permanent Resident (Green Card Holders), Refugee, Asylum) are available for the position being held by the foreign national to justify the sponsorship of the individual for a green card.
As the people leader at your company, here are the issues that you should consider and discuss with your immigration counsel -
Job Availability
Since the employer is required to demonstrate job availability through the PERM process, a recent layoff or reduction in force (RIF) may raise concerns with the Department of Labor about the availability of the job for which the foreign national was being sponsored. As a result, the Department of Labor (DOL) could potentially question whether the job position truly remains open and whether there are sufficient job opportunities within the company.
How to maintain PERM compliance after a layoff?
According to the DOL's regulations:
If there's been a layoff at the company within the last 6 months in the intended area of employment or in a "related occupation"
The company needs to notify and consider all potentially qualified laid-off U.S. workers in the last 6 months.
What does "related occupation" mean?
A "related occupation" is any occupation that requires workers to perform a majority of the essential duties involved in the occupation for which PERM is being sought.
How to notify qualified laid-off U.S. workers?
Notification should be provided by mail, fax, or e-mail, using the last known contact information for each worker
Notification should include a full description of the specific job opportunity and must invite the worker to apply for the position for which he or she is potentially qualified
Documentation of all contact should be kept.
What happens to PERMs filed before the layoff?
PERMs filed before the layoff are not affected. The only processes that will be affected are the PWD and the PERM job advertisement.
Job Requirement Changes
The PERM application is built on a set of job requirements, essential duties, work location, and associate pay scale for the offered position. If the layoff results in changes to any of these variables, it may impact the ongoing PERM process.
How to evaluate job requirement changes?
In the event of requirement changes, it's crucial for the company to evaluate the impact on the PERM process and consider whether adjustments need to be made to the ongoing green card sponsorship. Failure to address requirement changes properly could result in complications during the PERM process, including potential audits, requests for additional documentation, or even denials.
Job Duties and Responsibilities: Consider whether layoffs might lead to the redistribution of job duties among remaining employees or the elimination of certain tasks. Does the foreign national's job responsibilities significantly change? If the answer is yes, then a new PWD may need to be filed with the revised duties.
Qualifications and Experience: Would the company eliminate or reduce certain job requirements as part of the layoff, such as education level, years of experience, or specialized skills? If yes, this may require you to re-file the PWD to accurately reflect the job offered to the foreign national.
Salary and Compensation: Do the layoffs change the compensation structure, including salary reductions or changes in benefits? This could affect the prevailing wage determination and potentially cause discrepancies between the initial salary commitment in the PERM application and the actual compensation offered after the layoff.
How far behind does this set the foreign national employee?
Depending on where the foreign national employee is in the PERM process, this could set them back 1-9 months. For example, if you've just filed the PWD then refiling the PWD with the revised requirements would set you back a month or two. But if you just received approval on a PWD and the requirements have changed. Filing a new PWD would cause a delay of at least 6-8 months.
Consult immigration counsel
Given the complexity of the PERM process, you should always talk to your company's immigration counsel and evaluate your options.
Other Resources
How do layoffs impact employees on H-1B?
This article explains how H-1B employees are impacted by a layoff.
Employment-based Green Card
This article has our HR Guide for employment-based green card
Content in this publication is not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult a WayLit-affiliated attorney or another qualified professional.