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.
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:
Terminations for cause (e.g., policy violations or incompetence) or layoffs of contract workers do not trigger the notification requirement.
During the PERM filing, the DOL requires employers to attest to the absence of layoffs:
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.
To determine the impact of layoffs on pending PERM processes, ask the following:
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.
The following strategies may apply:
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.
Even if a six-month hold applies, employers can still take preparatory steps for future PERM filings, including:
If a layoff is unavoidable, taking proactive steps can help minimize its impact on pending PERM processes:
While layoffs can complicate the PERM process, careful planning and timely legal guidance can enable employers to continue supporting their foreign national employees effectively.
Layoffs require transparency to avoid conflicts and ensure compliance with immigration regulations. Notify your immigration attorney with the following information:
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.
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.