Dear Sophie: How do tech layoffs impact PERM and the green card process?

Dear Sophie,

I handle HR and immigration at our tech company. We filed a PERM for one of our team members about five months ago for her EB-2 green card, and we’re awaiting certification from the Labor Department. We’ve been gearing up to start PERM for another employee. Will the layoffs in the tech industry affect the PERM process for EB-2 and EB-3 green cards? What will happen to my team members’ green cards if our company has to do layoffs?

— Pondering in People Ops

A composite image of immigration law attorney Sophie Alcorn in front of a background with a TechCrunch logo. laid off H-1B

Image Credits: Joanna Buniak / Sophie Alcorn

TLDR: Yes, the layoffs in the tech industry will have an impact on your current PERM application if you are in or are about to enter the required recruitment process. Given the massive layoffs within the tech sector, your job posting will likely draw a huge number of applicants, meaning the U.S. Department of Labor would deny your PERM application, which is required for EB-2 and EB-3 green cards. If your company does layoffs within 180 days of submitting a PERM application, you are required to notify and consider all laid-off workers for the job opening that is the subject of the PERM application. Register for our 15-module course on what it takes to submit a strong application for an EB-1A or EB-2 NIW green card. Use code DEARSOPHIE for 20% off. And subscribe to our monthly newsletter for the latest immigration news and our upcoming free webinars.

Full Dear Sophie article:

Dear Pondering,

It’s wonderful that you’re steadfastly supporting your team with green card sponsorship. This can provide unfathomable peace of mind for individuals still on nonimmigrant status in the U.S.  through the green card process.  We’re here to help ease the holiday season with education about options for both companies and individuals. Listen to my chat with Lynda Hagerty, my Alcorn colleague and an expert immigration attorney, about how to navigate the impact of the mass layoffs in tech.

Now, let’s dive into the winter wonderland of PERM and employment-sponsored green cards.

Before I dive into your questions, let me provide some context and general recommendations for preparing for a consular interview.

Will tech layoffs impact the PERM process?

For the permanent labor certification application—or PERM—your company is currently working on, the short answer is yes; the layoffs may have several different effects, depending on where your company is in the process.

For those unfamiliar with the PERM green card process, it is multi-step and a time-intensive process involving a labor market recruitment test requiring employers to demonstrate to the U.S. Department of Labor (DOL) that there are no qualified U.S. workers (i.e. U.S. citizens and green card holders) who are qualified, willing and able to fill the EB-2 or EB-3 PERM position. PERM also aims to ensure that the opportunities, wages, and working conditions of U.S. citizens and green card holders are protected. If you are in or will soon start the PERM recruiting phase, you may receive a larger number of job applicants for your job posting due to the recent layoffs in the tech sector. With an uptick in potentially qualified applicants, it could prove more difficult to demonstrate that there is no qualified U.S. worker to fill the PERM role. If a qualified U.S. worker is ready, willing, and able to fill the PERM role, the labor market test fails, and the DOL will not grant the company’s PERM labor certification.

Keep in mind that unemployment is a big concern for the DOL. During the last recession, when millions of jobs were lost, DOL increased its scrutiny in the adjudication of PERMs, particularly within the financial sector, to ensure displaced U.S. workers were considered for positions before international talent. At the moment, the U.S. unemployment rate is under 4%, so we have a ways to go before we match the 10.6% unemployment rate reached in 2010. Although there have been many layoffs in tech, I remain optimistic as there are other indicators that the economy is still strong and there are many jobs available in and beyond the tech sector.

What happens if our company does layoffs?

If your company lays off U.S. workers in the same or related roles in the same area of intended employment in the 6 months preceding the PERM filing, the company will be required to notify and consider all potentially qualified laid-off U.S. workers for the PERM role.

Employers do not need to disclose layoffs that happen more than 6 months prior to the submission of a PERM application, and, in some circumstances, the company might be able to be strategic about the timing of PERM. As a word of caution, if your company has experienced layoffs, DOL might audit your PERM application asking the company to show that the U.S. citizens and permanent resident employees who were laid off were not qualified for the PERM job.

Alternatives to PERM green cards

I recommend that you consult with an immigration attorney on the best way forward and explore additional alternatives, including whether your team member can qualify now or in the future for either the EB-2 NIW (National Interest Waiver) or the EB-1A extraordinary ability green card, neither of which requires a PERM Labor Certification!

We’ve had success shifting individuals from an EB-2 PERM green card process to an EB-2 NIW, which doesn’t require PERM. EB-2 NIW does not require a job offer or labor certification, which means both an individual can self-petition for this green card and an employer can sponsor an individual without having to go through the PERM process. For an EB-2 NIW, you must show that the individual has:

  • An advanced degree or exceptional ability.
  • Skills and experience that are important to and will benefit the U.S., such as substantial contributions to the economy, public health, or innovation.

If you decide to shift to an EB-2 NIW for the employee for whom you have already submitted a PERM application, the good news is that the individual can keep any existing priority dates to retain their place in the green card line. Keep in mind that all individuals must now wait for green card numbers to become available for the EB-2 category—that means both the EB-2 and EB-2 NIW green cards—according to the December 2022 Visa Bulletin. And individuals born in India and China face the longest wait times, but a way to speed this up is by shifting these individuals to an EB-1A green card. Green card numbers are currently available for the EB-1A even for individuals born in India or China, but that may soon change. If you choose to follow the EB-1A route and the EB-1 category is still current, it’s often better to file the I-140 green card petition and the I-485 registration of permanent status concurrently to speed up time to a work permit and ultimate green card adjudication.

For the EB-1A, you must show that your employee meets at least three—although we typically recommend at least four for a strong application—of the following:

  • Received a nationally or internationally recognized prize or award.
  • Exclusive membership in organizations (usually invitation-only memberships).
  • Profiled in a professional or trade publication or major media.
  • Have judged the work of others.
  • Made major contributions to the fields of science, education, art, business or sports.
  • Written articles that have been published.
  • Work has been displayed or showcased.
  • Play a leading role in a distinguished organization.
  • Command a high salary or compensation.
  • Have commercial success in the performing arts.

An immigration attorney can help assess whether either of your employees is a strong EB-1A candidate and how to prepare further if they’re not quite there yet. There are definitely ways to support your international team members by providing peace of mind this holiday season.

All my best,

— Sophie

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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!