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FAQs: Impact of Layoffs on the PERM Process

January 23, 2025
Anna Buskila

When navigating the PERM labor certification process, employers must carefully consider the impact of layoffs on their ability to file applications. The Department of Labor (DOL) has specific requirements to ensure that U.S. workers are not displaced by foreign labor. Below are key FAQs to help employers understand how layoffs may influence the PERM process and take proactive measures to minimize the impact.

  1. How does the DOL define a layoff?

In the PERM context, the DOL defines a layoff as “any involuntary separation of one or more employees without cause or prejudice.” This includes actions like:

  • Company restructuring
  • Position elimination
  • Employee downsizing
  • Reduction-in-force

Terminations for cause (e.g., policy violations or incompetence) or layoffs of contract workers do not trigger the notification requirement.

  1. When and how should we notify the DOL about any layoffs in the PERM context?

During the PERM filing, the DOL requires employers to attest to the absence of layoffs:

  • in the area of intended employment; and
  • in the occupation involved in the PERM application or in a related occupation

within the six months immediately preceding the filing of the application. This is to ensure that U.S. workers are not being displaced by foreign labor.

  1. How to assess whether pending PERM processes are impacted by layoffs?

To determine the impact of layoffs on pending PERM processes, ask the following:

  • Were any laid-off individuals in the same area of intended employment as the foreign nationals for whom we are preparing to file PERMs? If we have PERM processes going for remote workers who can work from anywhere in the U.S., a layoff anywhere in the U.S. would be considered the same area of employment.
  • Were any laid-off individuals in the same or similar occupation as the foreign nationals for whom we are preparing to file PERMs?

If the answer to both questions is YES, then PERM processes were impacted and you should determine the strategy for those processes. Otherwise, the layoffs do not impact individuals in other locations, unrelated occupations, or those for whom a PERM application has already been filed or certified.

  1. What are my options in case of an impact?

The following strategies may apply:

  • A six-month hold on filing PERM applications is placed for individuals in the same area of intended employment and the same or similar occupation as those laid off.
  • The alternative to a six-month hold is to notify the laid off U.S. workers of the opportunity and consider them for that position. However, most employers find this impractical, and it is not recommended given that it increases the chance of an audit and denial.
    • Note: If you choose to pursue this strategy, only U.S. workers laid off by the employer need to be notified. Laid-off H-1B workers or other non-U.S. workers are excluded from this requirement.
  1. What is the potential impact of the six-month hold on PERM processes in progress?

PERM processes in the early stages, such as developing PERM job descriptions or awaiting a prevailing wage determination, are unlikely to be affected by the hold. However, PERM processes being prepared for PERM recruitment will likely need to be paused for a few months. PERM recruitment efforts can still be initiated closer to the end of the six-month hold period.

On the other hand, cases in the later stages, such as those in active PERM recruitment or PERM applications being ready to file, will be more significantly impacted. This is due to the requirement that the PERM application must be submitted within 180 days of starting the PERM recruitment process. These cases will most likely require redoing the recruitment step and potentially refiling the prevailing wage request, depending on the expiration date of the prevailing wage determination.

  1. Which PERM steps can be completed during the six-month hold?

Even if a six-month hold applies, employers can still take preparatory steps for future PERM filings, including:

  • Developing the PERM job description
  • Collecting experience letters from the foreign national
  • Requesting and receiving a prevailing wage determination
  • Conducting recruitment efforts (without filing the PERM)
  1. What if a layoff is unavoidable?

If a layoff is unavoidable, taking proactive steps can help minimize its impact on pending PERM processes:

  • Notify your immigration attorney early: Inform your immigration attorney about any upcoming layoffs as early as possible, without disclosing the names of the employees affected. Early notification can help initiate PERM recruitment efforts in a timely manner, ensuring that critical timelines are met and certain PERM filings are expedited before the layoff is officially announced.
  • Maintain consistent communication: Keep your immigration attorney informed of any updates or developments related to the layoff process.

While layoffs can complicate the PERM process, careful planning and timely legal guidance can enable employers to continue supporting their foreign national employees effectively.

  1. What information should we provide to our immigration attorney if layoffs occur?

Layoffs require transparency to avoid conflicts and ensure compliance with immigration regulations.  Notify your immigration attorney with the following information:

  • Names of individuals laid off, particularly if any are sponsored foreign nationals (e.g., H-1B workers, green card candidates). Remember, H-1B petitions for these individuals must be withdrawn.
  • The date the layoff will occur or has occurred.
  • The locations where the individuals worked (or if they were remote workers).
  • Job titles or occupations of those laid off.

If you have a dual-representation agreement with your immigration attorney, it is important to inform the affected employees about the layoff before sharing their specific names with your attorney. In cases where the attorney represents both the company and the foreign national employee(s), they are obligated to act in the best interests of both parties and must disclose the layoff information to the affected foreign national employees as well.

  1. When does the six-month clock start?

There is no definitive guidance from the DOL on this matter. Generally, the six-month clock starts after a layoff becomes effective, which is the actual separation date from the company. Since garden leave constitutes a continuation of employment, the clock typically begins only after the garden leave period ends and the employee is officially terminated. In cases of staggered layoffs, the six-month period starts from the termination date of the last employee affected.

However, even if the six-month clock technically begins on the termination date, filing PERM applications after layoff information becomes publicly known (e.g., via WARN Act notifications or public announcements) may carry risks. These are nuanced questions, and the specific circumstances of the layoff should be carefully analyzed with your immigration attorney to determine which date is controlling.

If you have any additional questions, do not hesitate to contact our office at (312) 427-6163 or schedule a consultation online.

The material contained in this alert 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.

© 2023 Minsky, McCormick & Hallagan, P.C. All rights reserved. Information may not be reproduced, displayed, modified, or distributed without the express prior written permission of Minsky, McCormick & Hallagan, P.C.

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