Job layoffs can significantly affect PERM (Program Electronic Review Management) filings for employers and foreign workers pursuing permanent residency through employment-based immigration. The PERM process is a critical step in obtaining an employment-based green card, requiring the employer to demonstrate that no qualified U.S. workers are available for the job position being offered to the foreign worker.
Employer Obligations After Layoffs
When layoffs occur, particularly within six months before filing the PERM application, the employer is required to notify and consider any U.S. workers who were laid off from similar positions. This obligation ensures that laid-off U.S. workers are given priority consideration before a foreign worker is hired.
Increased DOL Scrutiny
Layoffs can lead to increased scrutiny from the Department of Labor (DOL), which carefully examines whether laid-off workers were genuinely considered for the job opportunity. If the employer fails to adequately consider these workers or cannot prove that no qualified U.S. workers were available, the PERM application may be denied. The DOL’s primary concern is to protect U.S. workers, so any evidence that a qualified U.S. worker was overlooked can be grounds for denial.
Potential Delays in PERM Filings after Layoffs
In response to layoffs, employers may delay filing PERM applications until more than six months have passed since the layoffs, in an attempt to avoid the additional obligations related to considering laid-off workers. However, this delay can impact the overall timeline for the foreign worker’s green card process.
Importance of Documentation and Legal Guidance
To mitigate risks, employers must maintain thorough documentation of their efforts to notify and consider laid-off workers, including detailed records of any correspondence, interviews, and reasons for not rehiring laid-off workers. Legal guidance is often sought by employers to ensure compliance with DOL requirements and to minimize the risk of application denial.
Navigating Challenges in Immigration
Employers must navigate these challenges carefully to comply with legal requirements and protect their ability to sponsor foreign workers, while foreign workers remain vigilant and flexible in the face of such challenges in the immigration process. Since these are complex areas of U.S. immigration law, if you have any questions about the above, be sure to contact Berardi Immigration Law to schedule a consultation with an attorney today. You can also find more information on tech layoffs on our Berardi blog.
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