In recent months there have been discussions regarding layoffs in the tech industry. Despite an overall low unemployment rate, a recent Nerd Wallet article cited layoffs at 794 companies in 2023 alone. This news can be troubling information for companies and foreign nationals alike. Layoffs matter not only to those directly impacted by the decision, but it can also have ripple effects on a company's overall talent management strategy if they have foreign nationals in the early stages of the green card process, called the PERM process. Layoffs require employers to weigh a variety of factors and make tough choices for their employees. For many foreign nationals, having the PERM filed and approved is an enormous hurdle that puts them one step closer to getting a green card and with it the stability and the knowledge that they may permanently reside in the United States without relying on visa sponsorship. For employers, however, it may also affect their decision and ability to sponsor foreign nationals at all.

The PERM process, an application filed with the Department of Labor (DOL), is the first step toward getting a green card and its main purpose is to test the labor market and determine whether there are able, willing and qualified U.S. workers interested and available for the role. With so many companies experiencing layoffs, this can change an employer's decision to start or even proceed with a PERM process as it may not be possible to document a shortage of U.S. workers in the area of intended employment. The PERM regulations contain a layoff provision that triggers when the employer has laid off U.S. workers within the last six months preceding the filing of the PERM application. It specifies that a PERM application may not be filed if the laid off workers were in the same or a related occupation as the worker to be sponsored, and the layoffs must be in the area of intended employment identified in the PERM process. Whether the laid off U.S. worker was in the same or similar role is not dependent on the job title alone and requires an analysis of the job duties performed in both roles.