While businesses typically take extensive steps to avoid layoffs, they’re unfortunately part of the business life cycle. As the United States has had a recent uptick in layoffs across various industries, employers should be aware of the potential impact to their permanent residence (green card) immigration programs.
The PERM (or labor certification) application is one of the most common types of employment-based permanent residence applications. To file a PERM application, employers must conduct a labor market test and be able to confirm there wasn’t a layoff of a minimally qualified U.S. worker within the area of intended employment. Below are points to keep in mind when analyzing the potential green card impact of a layoff.
PERM Background
The PERM process is the first step in pursuing an employment-based green card application where an employer certifies to the Department of Labor (DOL) there are no minimally qualified, willing, and able U.S. workers available to occupy the full-time, permanent position being offered. When filing PERM applications, U.S. employers must disclose at the time of filing whether there has been a layoff in the area of intended employment (within commuting distance) in the occupation for which the PERM certification is sought or in a related occupation within the 6 months immediately preceding the filing.
Was There a Layoff of U.S. Workers?
In making this disclosure, employers should initially consider whether the layoff was voluntary or involuntary. A “layoff” in the immigration context is considered any involuntary separation of one or more U.S. workers without cause or prejudice. As such, if a termination was for cause, then it would generally not be considered a layoff.
If the personnel action taken is an involuntary separation not for cause, such as a reduction in force, employers should then identify foreign national employees in their workforce who are or may be the subject of PERM labor certification sponsorship and who (1) are employed by the same entity, (2) are within the same specific geographic location, and (3) hold the same or similar job opportunity as the position that was laid off in order to assess how the layoff may impact the planned PERM labor certification case.
1. Was the Layoff with the Same Employing Entity?
For purposes of conducting a layoff analysis, employers should identify employees within the same employing entity, defined by its Federal Employer Identification Number (FEIN), as the laid-off worker(s). If layoffs occurred in an affiliate or a subsidiary entity with a different FEIN, then those layoffs don’t need to be considered in the analysis.
2. If There Was a Layoff, Did It Occur in the Area of Intended Employment?
The “area of intended employment” includes any place within the metropolitan statistical area (MSA) and is defined by the DOL as “the geographic area within normal commuting distance of the place (worksite location) of the job opportunity for which the certification is sought.” As such, if a layoff occurred for a role outside the area of intended employment, then there wouldn’t be an impact on the PERM application. The DOL hasn’t defined the “area of intended employment” for layoff purposes for employees who work remotely or telecommute from anywhere in the United States, so this fact pattern should be discussed with immigration counsel.
3. Was the Layoff in a Related Occupation?
A “related occupation” is any occupation that requires U.S. workers “to perform a majority of the essential duties” involved in the PERM occupation. In evaluating a “related occupation,” the DOL looks to the occupation’s essential job duties and responsibilities. The job titles of related occupations as a singular factor aren’t dispositive in the analysis. Rather, a layoff in a related occupation occurs when there’s an overlap of more than 50% of the essential job duties between the laid-off occupation and PERM occupation.
If There’s a Layoff Impact, What Are the Options and Next Steps?
If an active PERM application is impacted by a layoff, the employer has the following options:
Pause the process and later restart the labor market test
PERM recruitment is a snapshot of the current labor market. If there’s a layoff that impacts a PERM application, then the employer wouldn’t be able to move forward with filing the PERM application at that time unless the employer notifies all potentially qualified laid-off U.S. workers of the PERM job opportunity, gives them an opportunity to apply for the position, and considers any laid-off workers who apply. In lieu of doing this, the employer may put the process on hold and pursue the PERM application at a later time when the layoff is no longer a potential issue. Given limited validity of PERM advertisements, this will likely mean the employer would need to repost the PERM advertisements. Also, the employer may need to obtain a new prevailing wage determination, depending on its validity. Lastly, the employer would need to conduct a new layoff analysis, so if there are rolling layoffs, there could be a detrimental impact on the PERM program.
Notify and consider laid off workers for the role
Alternatively, as noted above, employers can proceed with the PERM case by notifying and considering all laid-off U.S. workers for the PERM position and documenting the results within the audit file. If employers can confirm that no qualified U.S. workers were identified after notification and consideration of their qualifications for the PERM positions, then they may proceed with filing the PERM application.
Finally, if a layoff delays the PERM process for an employee, the employer should review the employee’s temporary work visa status in case this delay impacts the employee’s continued work authorization in the United States.
The Bottom Line
If your business anticipates future layoffs, we recommend discussing this with immigration counsel to analyze the immigration program impact.
Rachel Beardsley is a Partner and Laura Flynn and Stephanie Speirs are Associates at Fragomen, the world’s leading immigration services provider.