PERM & Layoffs 2026: What EB-3 Employers Must Know Before Filing

Layoffs and PERM labor certification filings can create significant legal exposure for employers sponsoring foreign national workers for EB-3 green cards. Under Department of Labor regulations, employers must demonstrate they made good-faith efforts to recruit U.S. workers before sponsoring a foreign national, and layoffs of similarly situated workers can undermine that showing. When a reduction in force (RIF) occurs in the same job classification or location as the PERM position, employers are generally required to re-contact recently laid-off workers and consider them for the sponsored role. Failure to do so — or failing to document why laid-off workers were not qualified or available — can result in PERM denial or audit findings. For EB-3 petitions already in process, employers should immediately assess whether any layoffs affect the sponsored job title, location, or department. If overlap exists, legal counsel should evaluate whether supplemental recruitment or a new PERM filing is required before proceeding to the I-140 stage. Employers maintaining active PERM applications during restructuring should document the business necessity of the layoffs separately from the sponsorship decision, and retain records proving that any displaced U.S. workers were not displaced by the foreign national beneficiary. This paper trail is critical in the event of a DOL audit, which can occur up to five years after PERM certification. For EB-3 applicants whose employer is undergoing layoffs, the key risk is that their PERM application may be withdrawn, denied, or delayed. Workers in this situation should consult with an immigration attorney promptly to understand options such as job portability under AC21 if an I-485 has been pending for 180 days or more.