With news of layoffs at prominent companies and the prospect of potential additional announcements, individuals who are in the employment-based green card process should be aware of how their permanent residency application is impacted if their sponsoring company terminates their employment.
If the PERM is not yet certified:
For applicants whose PERM labor certification is not yet filed, it is highly likely their employer will not be able to proceed with the application as a direct result of the layoff. The PERM labor certification process requires the sponsoring employer to certify that there are no willing, able, and minimally qualified U.S. workers available for the position for which the foreign national is being sponsored. If the layoff included U.S. workers in the area of intended employment who would have been willing, able, and qualified for the sponsored position, the PERM process could not go forward.
This is the case even if the foreign national is not personally terminated – employees who remain with the company may not be able to proceed with the PERM process with a company that has recently laid off workers, even if the sponsored employee is not among the layoffs.
If the employment situation at the company recovers sufficiently, it may be possible for the employer to resume the PERM process in the future, but likely not for several months at least. For H-1B visa holders approaching the 6-year limit on their status, it will likely be necessary to seek employment sponsorship elsewhere in order to obtain a PERM and I-140 approval in time to extend their nonimmigrant status.
If the PERM is certified but the I-140 petition is not yet filed:
Even if the PERM labor certification has been approved, an employer that has recently undergone layoffs might not be able to proceed with the I-140 filing. The I-140 immigrant petition requires the employer to certify that it has an opening for the sponsored position, which they may not be able to attest to in the midst of a layoff.
If the sponsoring employer is unable to file the I-140 petition within the 180-day validity of the labor certification, the PERM becomes invalid and would need to be re-filed, either by the same employer in the future when its hiring situation changes, or with a different employer.
If the I-140 petition is approved:
For beneficiaries of an approved I-140 petition who are subsequently laid off by the petitioning employer, there may be some benefits that can be retained from the approved petition, as long as the I-140 remained approved for at least 180 days. In this situation, the beneficiary can continue to use the I-140 approval notice in order to extend their H-1B status beyond the 6-year limit, and the H-4 spouse may continue to use the I-140 approval to apply for or extend their EAD, even if the approval is withdrawn by the petitioner after the 180-day mark.
If the I-140 petition is withdrawn before it has been approved for 180 days, the beneficiary would not be able to use it for H-1B extensions or H-4 EAD applications, but the priority date would be retained and can be ported to another employer’s I-140 petition.
In both situations (withdrawal before or after 180 days of approval), the beneficiary would need to re-start the PERM and I-140 process with a new employer prior to applying for adjustment of status, if their current I-140 petitioner is unable to offer them the position at the time their priority date becomes current in the visa bulletin. Depending on how close the priority date is to becoming current, re-starting the PERM and I-140 with a different company might not be a particularly urgent matter, especially if the employee has the benefit of an I-140 approved for more than 180 days.
If the I-485 application is filed and pending:
For adjustment of status applicants, the impact of a layoff also differs depending on whether 180 days have elapsed since the I-485 application was filed. Applicants whose I-485 has been pending for more than 180 days are eligible for job portability under AC21 – their I-485 application can continue processing even if the underlying I-140 petition is withdrawn, if they receive another job offer in an occupation that is same or similar to the sponsored position. This new job offer can be with another company, or could be through self-employment.
For applicants whose I-485 has been pending for less than 180 days, if the layoff results in a withdrawal of the underlying I-140 petition, then the adjustment of status application is no longer supported and would be denied. If the I-140 petitioner is able to offer the position again to the applicant in the future, there is the possibility of re-filing the I-485 application at that later date, if the applicant’s priority date is still current at that time. Otherwise, the process would need to be started anew through a different company.
The effect of a layoff on a permanent residency application can therefore vary greatly, depending on what stage of the process has been reached. Individuals who find themselves subject to a layoff are advised to consult with immigration counsel to determine the effects of the termination on their particular situation.
Rebecca Chen is a Partner at Reddy & Neumann. Her representation includes advising clients throughout the non-immigrant and immigrant visa application process, from initial filing, responding to various requests for evidence, and processing at overseas consulates. Her years of experience in the immigration field have made her a knowledgeable resource for complex business immigration matters.