Layoff of U.S. Workers in the PERM Context

Layoffs of U.S. workers can have big effects on employers in the context of the PERM (Program Electronic Review Management) process for getting permanent labor certification. The rules say that if an employer has fired U.S. workers in the same or a similar job in the area of intended employment within the last six months before filing Form ETA 9089, the employer must follow additional rules.

A layoff is “the forced separation of one or more employees without cause or favor.” This includes actions that an employer calls “reductions-in-force,” “restructuring,” or “downsizing,” all of which have to do with people. Most of the time, the legal entity with a unique Federal Employer Identification Number is thought to be the employer (FEIN).

A “U.S. worker” is an employee who is a citizen or national of the United States, a U.S. lawful permanent resident, an alien admitted as a refugee under section 207 of the Immigration and Nationality Act (INA), an alien granted asylum under section 208 of the INA, or an immigrant who is otherwise allowed (by the INA or by the Attorney General) to work in the United States.

It’s also important to think about where the layoff will happen. Only if the layoff happened in the area where the person wanted to work do they have to follow more rules. The area of intended employment is the area within the same metropolitan statistical area or within a normal commute distance of the place of intended employment (MSA). This can be hard to figure out, especially with the rise of telecommuting and working from home.

Employers must also think about whether or not the role of the laid-off worker was related to the job for which sponsorship is being sought. The regulation says that the employer has to go through the “notify and consider” steps when there are layoffs “in the occupation for which certification is sought or in a related occupation.”

During times of macroeconomic uncertainty, when employers may have to lay off workers to get through tough times, these rules are especially important to immigration and global mobility stakeholders. Employers need to be careful when planning layoffs and make sure they don’t have anything to do with the PERM process for hiring foreign nationals. Before laying off workers, it is also important for employers to talk to an immigration lawyer to make sure they are following all immigration laws and rules.