Widespread tech layoffs have been an unfortunate and persistent trend over the past couple years, and while we wish we could be devoting our inaugural blog post to a newly-implemented path to citizenship for undocumented immigrants, or the end of the green card quota system, or a million other things on our immigration reform wish lists, here we are in 2024 where the best news we have to share is that EAD auto-extensions have been lengthened and medical exams no longer expire. So, welcome! And thank you for reading, and please feel free to share widely.
Whether you are a global mobility professional at a company that has had layoffs, or an employee on a work visa who has been laid off, we have helped manage layoffs for companies of all sizes over the years, and we have a few tips.
For Impacted Employees
To those who have lost their jobs, we’re sorry. We know sudden job loss can be traumatic and scary, and we can’t imagine the added strain of potentially needing to uproot your entire life. You may have options to remain in the U.S. long-term, which we’ll outline here, and which we are happy to discuss with you in detail.
As an immediate solution, you may have a grace period that entitles you to remain in the U.S. for a short time while looking for a new employer to take over your immigration sponsorship, or you may be eligible to change to a different classification (like a visitor, or a dependent of your spouse). If you’ve gotten far enough into the green card sponsorship process to have a pending Adjustment of Status application, you may have additional options for employment authorization and an extended timeline to remain in the U.S.
If you’re still in the early stages of the green card sponsorship process, you may be eligible to “self-petition” to build your own pathway to a green card under EB-1 or NIW. These categories are beneficial in that they do not require the support of an employer or even a permanent job offer in the U.S. - and for some, EB-1 or NIW may allow you to simultaneously skip right to filing your Adjustment of Status (“green card”) application - though they do have a series of eligibility criteria that must be met. Or, alternately, if you have a qualifying relative who is a U.S. Citizen or Lawful Permanent Resident, you may have an option to apply for a family-based green card. If you’re not sure if any of these options are applicable, contact us, and we’re happy to review them with you.
For Global Mobility/HR Professionals
Remember, if your company is going through layoffs, you have two groups of foreign national employees who may be impacted: 1) those whose positions have been eliminated; and 2) those whose green card sponsorship processes may be impacted. The earlier you can loop in your immigration counsel to review and help you assess options, the better the opportunity to mitigate impact to both populations and to protect your company's reputation and image. Employees who have been directly impacted will have been thrust into a precarious scenario whereby their ability to remain in a country where they may have lived for a very long time, and where they may have been raising children who are U.S. citizens, and where their spouses may then have also immediately lost their work authorization, has now been jeopardized. These employees should be treated with care, and at the very least offered an opportunity for a direct consultation with an experienced immigration attorney to review their short-term and long-term options (which may include an application to change status, or an opportunity to apply for a self-sponsored green card, not reliant on any offer of employment).
For your remaining foreign national employees, a layoff may hinder the company's ability to proceed with their green card sponsorship through PERM. By way of background, PERM sponsorship requires employers to conduct a good-faith test of the U.S. labor market to determine whether there are any minimally qualified, willing, able, and available U.S. workers who could do the job. When a company has laid off U.S. workers in the same occupation and area of intended employment, those individuals must first be notified and considered for the job opportunity before the company can proceed with a PERM filing (see 20 CFR 656.17(k)). Notify and consider is a topic for another time, but considering the complexities involved, many companies find it prudent simply to halt PERM filings following a layoff in order to ensure compliance.
In either scenario, your remaining employees also need to be considered - and particularly those who are running low on H-1B time and need to get into the first stages of the green card sponsorship process to renew their H-1Bs beyond the initial six-year limitation. Considering how long it is currently taking the Department of Labor to process PERMs (well over a year for most), any employee whose PERM can't be filed one full year before their six-year limit needs to be considered "at risk" and a contingency plan implemented. For global companies, this could be a temporary transfer to another office abroad, or it could be an assessment as to your employee's eligibility for an alternate green-card path like EB-1 or a National Interest Waiver (NIW). If you have employees who fall into this bucket, we're happy to review and advise on potential options for them.
We hope this has been helpful and we look forward to sharing our insights with you moving forward! And of course, please keep in mind that the information shared here is for informational purposes only, does not constitute legal advice, and should not be relied or acted upon without consulting with a legal professional.
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