Important Notice
We recently worked with a client, a mid-sized tech company in New York, who faced an unexpected workforce reduction while in the middle of multiple PERM labor certification applications for their senior engineers. This situation raised urgent questions about how layoffs intersect with PERM regulations and what practical steps the employer must take to protect ongoing immigration petitions.
Attorney Insight
PERM labor certification requires the employer to demonstrate a genuine, permanent job opportunity that matches the position described in the recruitment process. According to 20 CFR §656.17, any material change in job duties or the availability of the position during the recruitment period can jeopardize the application. From our experience, layoffs that affect the position or the department can trigger Requests for Evidence (RFE) or even denials if not handled carefully.

In this client’s case, the company had laid off several engineers in the same occupational category, which raised concerns about whether the PERM applications filed would still reflect a bona fide job opportunity. We advised them to immediately document the business reasons for the layoffs, such as restructuring or economic necessity, and to ensure that the job descriptions and recruitment materials submitted to the Department of Labor (DOL) remained accurate and consistent.

We also recommended a detailed review of recruitment advertisements to confirm that the job requirements and duties had not materially changed post-layoff. If changes were necessary, the employer should consider withdrawing the current PERM and refiling to avoid jeopardizing the case. In addition, the timing of layoffs relative to the recruitment period is critical—layoffs occurring before recruitment may signal a lack of job availability, while layoffs after recruitment can be less problematic if well documented.

Another important point from the PERM Audit Handbook (DOL ETA 9089 instructions) is that employers must maintain thorough records of recruitment efforts and business necessity for layoffs for at least five years. We stressed to our client that failure to produce such documentation during audits could result in denials or investigations.

Based on our practice, employers should take two concrete actions now: 1) Conduct an immediate audit of all ongoing PERM cases in light of recent layoffs, verifying that job descriptions and recruitment steps remain valid; 2) Prepare a comprehensive business justification memo explaining the layoffs and how the job opportunity remains genuine. This proactive approach helps mitigate risks during DOL or USCIS reviews.

For companies with multiple PERM filings or those planning future labor certifications, we advise integrating workforce planning with immigration strategy. Close communication between HR, legal, and management teams is essential to anticipate potential disruptions and align recruitment timelines with business realities.

In summary, layoffs during PERM are not uncommon but require careful navigation to avoid adverse immigration consequences. Employers should not ignore the impact of workforce changes on labor certification and must document and adjust filings promptly. This approach preserves the integrity of the immigration process and maintains a clear path for foreign national employees.

What this means for you: If your company is undergoing layoffs while sponsoring employees through PERM, immediately review your recruitment materials and job descriptions, document business reasons thoroughly, and consult with your immigration counsel to ensure all filings remain compliant and defensible.