Immigration Update: Processing Delays and Tech Layoffs Add Complications for Employers | Fisher Phillips


Employers know that U.S. immigration law is complex, and long delays in Department of Labor (DOL) processing and recent job cuts in the tech industry have created new factual patterns that were previously unthinkable. added, further complicating the problem. What should I know about the latest trends and their impact on my business?

Three points about DOL processing time

DOL is responsible for reviewing and approving certain employment-based applications, such as Preferential Wage Determination (PWD) and Permanent Work Recognition Applications (PERM). The department recently announced its latest processing times. Here are three key points to note about the implications for employers.

1. significant delays

DOL data shows that processing common wage claims and PERMs continues to be delayed for a long time. As of December 31, DOL was processing PWD requests for H-1B OES and PERM OES filed in January 2022. DOL is also processing PERM applications filed before April, taking an average of 255 days to complete.

2. Complications may delay further

At current rates, employers can expect to wait at least 20 months to obtain an accredited PERM for the green card process. This does not include cases where hiring does not occur concurrently while the PWD is pending, or where the DOL initiates an audit (which can take at least four months).

3. Processing time may impact H-1B or L-1 workers with maximum duration of employment eligibility

Under the American Competitiveness in the 21st Century Act of 2000, H-1B workers are eligible for employment extensions beyond the six-year cap date in certain circumstances. H-1B workers granted I-140 applications with no current priority date.

The faster processing time allowed employers to initiate the green card process and obtain an approved I-140 in the final year of the foreign worker’s work eligibility. However, that timeline is no longer realistic and he has two to three years from the expiration date to start the green card process. Failure to do so could result in significant business disruption as the sponsored employee may not be able to continue working. Additionally, employees may be forced to leave the United States.

3 key immigration takeaways from recent tech layoffs

H-1B visa programs and PERM-based green card sponsorships are dominated by tech sector employers. In particular, in response to economic uncertainty, many tech companies have recently laid off workers en masse and frozen hiring. These employers must consider federal regulations when firing nonimmigrant workers and when seeking new PERM certifications after layoffs. Here are three main things you should do:

1. Impact on Nonimmigrant Visa Workers

All E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN visa holders have a 60-day grace period or approved validity period until the end of whichever is shorter than the cancellation date. During this grace period, affected nonimmigrant visa holders may remain in the United States without work and will not be considered “ineligible.” Additionally, during this grace period, employees may transfer their visas to new employers or use this time to prepare to leave the United States without leaving the country or changing to another visa status. You can Grace period during which onboarding affects nonimmigrant visa workers.

In addition, sponsoring employers must ensure federal compliance when firing certain nonimmigrant employees (H-1B and O visa holders).

  • Notify the employee that the employment relationship has ended.
  • Notify USCIS in writing that the relationship has ended.When
  • Provide employees with reasonable round-trip transportation costs.

Employers who do not complete the termination process in good faith can face heavy penalties, including refund of wages, payment of civil fines, and disqualification from the H-1B program.

2. Effect of layoffs on the PERM certification process

PERM certification is the first step for employers to enable permanent employment of foreign workers in the United States. This certificate is issued by the DOL after the petitioning employer surveys the local labor market for the full-time job and confirms that there are no qualified U.S. workers for the job. Employers who have laid off workers within the last 180 days are required to comply with federal regulations to notify and consider all potentially eligible laid off workers who meet the following criteria: Within the six months prior to the PERM application, was the dismissed employee working in the same region, at the same time, and in the same or related position as the sponsored PERM position? Employers may not submit a PERM application for at least 180 days if they are deemed eligible for a job subject to the PERM process.

3. What impact will this have on laid-off employees?

The PERM labor certification process is employer-specific, so affected employees who are currently in the middle of the PERM process will need to restart the process when they are hired by their new company. An employee who has her PERM application approved at a company doing layoffs can only benefit by getting priority dates back on an approved I-140 from that company.

Laid-off employees who have an approved I-140 from their previous company may use the secure immigrant visa priority date shown on the approved I-140 to reunite with their new employer. It can be “re-acquired” for future employment-based immigrant visa petitions. -140 will be withdrawn within 180 days after approval by the sponsoring employer.

Employees whose immigration status application has been pending adjustment for more than 180 days can change employers as long as they continue to work in the “same or similar occupation.” Any employee who has less than 180 days pending on her status application will have to reprocess the green card with her new employer.


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