In recent months there have been discussions regarding layoffs in the tech industry. Despite an overall low unemployment rate, a recent Nerd Wallet article cited layoffs at 794 companies in 2023 alone. This news can be troubling information for companies and foreign nationals alike. Layoffs matter not only to those directly impacted by the decision, but it can also have ripple effects on a company’s overall talent management strategy if they have foreign nationals in the early stages of the green card process, called the PERM process. Layoffs require employers to weigh a variety of factors and make tough choices for their employees. For many foreign nationals, having the PERM filed and approved is an enormous hurdle that puts them one step closer to getting a green card and with it the stability and the knowledge that they may permanently reside in the US without relying on visa sponsorship. For employers, however, it may also affect their decision and ability to sponsor foreign nationals at all.
The PERM process, an application filed with the Department of Labor (DOL), is the first step towards getting a green card and its main purpose is to test the labor market and determine whether there are able, willing, and qualified US workers interested and available for the role. With so many companies experiencing layoffs, this can change an employer’s decision to start or even proceed with a PERM process as it may not be possible to document a shortage of US workers in the area of intended employment. The PERM regulations contain a layoff provision that triggers when the employer has laid off US workers within the last 6 months preceding the filing of the PERM application. It specifies that a PERM application may not be filed if the laid off workers were in the same or a related occupation as the worker to be sponsored, and the layoffs must be in the area of intended employment identified in the PERM process. Whether the laid off US worker was in the same or similar role is not dependent on the job title alone and requires an analysis of the job duties performed in both roles.
In analyzing what should be considered the area of intended employment, one of the challenges employers face is how remote or hybrid employees affect the PERM process. For hybrid employees who report to a specific office, the layoff of an employee who is hybrid but reporting regularly to a Los Angeles office would not affect the PERM process for a hybrid employee who reports regularly to a Philadelphia office. However, when a role is 100% remote, the employer has indicated the employee’s location is irrelevant as long as they meet the requirements for the role. Therefore, a layoff of an employee in one city will impact the PERM process for a fully remote employee. When looking at which layoffs may impact a PERM process, employers should begin the analysis by assuming that all layoffs are relevant, and then work with counsel to narrow it down which layoffs potentially matter.
If after this analysis the employer wishes to proceed with the PERM process, the regulations require that the employer take affirmative steps to notify and consider all potentially qualified laid off US workers who worked in same or related occupation(s). Should laid off US workers be able, willing, and qualified for the role, the employer may not complete the PERM process for non-US workers.
How to handle workforce needs in the context of layoffs requires many delicate considerations and some employers may choose to forgo the PERM process entirely for six months after a layoff. Larger corporations may have layoffs in one office or division but still maintain a thriving workforce in other areas, or may need to lay off non-technical employees while sponsoring talent from abroad for technical roles. In these situations, the PERM regulations focus on the protection of US workers directly in the geographic area and the specific roles undergoing the PERM process, and do not regulate the employer’s workforce strategy more broadly than necessary.
The key takeaway from this discussion of the PERM regulations is that employers who have international talent as part of their staffing strategy must consider both short term and long-term effects of layoffs on that talent strategy. Ideally, that consideration of how layoffs will impact the company’s international talent needs will be done by involving immigration counsel at an early stage in the discussion of potential layoffs. That consideration can cause a re-evaluation of the role of international talent in staffing, and the changing dynamics of the local labor markets in which the company operates. Such early consideration can avoid disruptions both to the company’s operations in the short term and to its longer term workforce needs.
The material contained in this article does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Reprinted with permission from the July 12, 2023 edition of The Legal Intelligencer© 2023 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.
