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

Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.

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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

Dear Pondering,

It’s wonderful that you’re steadfastly supporting your team with green card sponsorship. This can provide unfathomable peace of mind for people still on non-immigrant status in the U.S. through the green card process. We’re here to help ease the holiday season with education on the options for both companies and individuals.

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

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.

The PERM green card process is a multistep and time-intensive one 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 (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 of 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 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 job requirements in and beyond the tech sector.

What happens if your company lays people off?

If your company lays off U.S. workers in the same or related roles in the same area of intended employment in the six 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 six 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 laid people off, the 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 job.

Alternatives to PERM green cards

I recommend that you consult 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 moving 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 that an individual can self-petition for this green card and an employer can sponsor an employee 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 you’ve already submitted a PERM application for, the good news is that they 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.

People 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 people 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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