Can Your Employer File PERM After Layoffs? The Laid-Off-Worker Rule and EO 14431, Explained
Your company just cut jobs and your green card case is next in line. Here is what the PERM layoff rule requires of your employer, and what EO 14431 does not touch.
Part of our guide to PERM labor certification.
Yes. As of November 1, 2026, your employer can still file PERM after layoffs. No regulation bars a green card labor certification because a company cut jobs. The catch is 20 CFR 656.17(k): a layoff in your occupation or a related one, in your job's commuting area, within the six months before your Form ETA-9089 is filed, obliges the employer to notify and consider those laid-off US workers for your job. If one of them is qualified and wants it, that recruitment generally cannot support certification.
Status line, as of 2026-11-01:
- 20 CFR 656.17(k), the PERM layoff rule: in effect, unchanged.
- EO 14431 (layoffs as an H-1B factor): in effect as a directive. Its text does not mention PERM; no implementing guidance found, no definitions, no automatic denial.
- DOL's PERM proposal (RIN 1205-AC29): cleared OIRA review on 2026-10-23, "Consistent with Change". Not published: no text, no comment period.
- Enforcement: DOL's announced PERM suspension of eight named employers (2026-10-08) is in effect with no written notice, no stated legal basis and no end date. Cloudera settled on 2026-10-16 with a two-year PERM debarment.
Can a company file PERM after layoffs?
Yes. Layoffs do not bar a PERM filing; they add a duty. Under 20 CFR 656.17(k), when the employer laid off workers in the same or a related occupation, within normal commuting distance of the worksite, during the six months before filing Form ETA-9089, it must notify and consider the potentially qualified laid-off US workers and document the results. The rule is unchanged as of 2026-11-01.
The operative sentence of 656.17(k)(1), verbatim:
"If there has been a layoff by the employer applicant in the area of intended employment within 6 months of filing an application involving the occupation for which certification is sought or in a related occupation, the employer must document it has notified and considered all potentially qualified laid off (employer applicant) U.S. workers of the job opportunity involved in the application and the results of the notification and consideration."
A Morgan Lewis alert (2026-10-15) sums it up: the rule "imposes additional notification, consideration, and documentation requirements."
The six tests in 656.17(k), as of 2026-11
| Test | What the text says | What it means for you |
|---|---|---|
| Who | "a layoff by the employer applicant" | The company filing your PERM; whether an affiliate's cuts count is for its counsel |
| What | "any involuntary separation of one or more employees without cause or prejudice" | One person is enough; a termination for cause is outside the definition |
| Which jobs | Your occupation, or a related one that "requires workers to perform a majority of the essential duties" of yours (656.17(k)(2)) | Duties decide, not titles: a cut in QA or data engineering counts only if those roles perform most of your job's essential duties |
| Where | The area of intended employment: per DOL's Form ETA-9089 instructions, "the area within normal commuting distance of the address of the place of intended employment" | Cuts outside your worksite's commuting area generally fall outside |
| When | "within 6 months of filing"; the form asks about "the six (6) months immediately preceding the filing" | Count back from the filing date |
| What is owed | Notify and consider "all potentially qualified" laid-off US workers; document the results | A real notice, a real chance to apply, a record |
What counts as a layoff?
A single involuntary separation can trigger the rule; whether an exit was "for cause" is a factual call for the employer's counsel. Voluntary exits are this fall's edge case. Microsoft's 2026-10-26 offer to about 60,000 employees is a voluntary buyout offer, not a layoff (CNBC). On the regulation's wording, someone who freely accepts one has not had an "involuntary separation" (our reading; how a program is run matters, and counsel decides). Microsoft's PERM cases face a separate problem: it is one of the eight employers in DOL's announced suspension.
What does the PERM laid-off worker rule require the employer to do?
Three things: tell each potentially qualified laid-off worker about your job, genuinely consider anyone who responds, and keep records proving both. The regulation sets no notice method or deadline, so practice fills the gap. This sits on top of standard recruitment, which our guide to the PERM recruitment report and how US applicants are reviewed walks through.
Notify. Practitioners describe a written, specific invitation: email or certified mail to the last known address, a full job description and clear application instructions (Fakhoury Global Immigration, via Legal 500, 2023-11-30). According to that article, a February 2014 DOL FAQ said that telling laid-off workers the employer may have future positions, and inviting them to watch its postings, does not meet the requirement.
Consider, in time. The case practitioners cite is BALCA's Matter of Anthem, No. 2020-PER-00115, decided 2023-04-12. According to the Fakhoury article, the employer notified a laid-off worker 127 days after its first ad but only one day before filing, and BALCA found that notice given "immediately prior to filing the application" was not an adequate good-faith effort. We relied on that summary, not the decision itself.
Document. DOL's Form ETA-9089 General Instructions put the question at item G.12, "Job Information – Occupational Layoff." A Yes answer goes to Appendix C, which must "explain briefly the nature of the layoff specifying the job title(s), job location(s), and the number of employees laid off," and how they were notified, in no more than 1,500 characters with no attachments. Under 20 CFR 656.10(f), the employer keeps the application and supporting documents for five years from filing, and DOL can ask for those records in an audit. Our Form ETA-9089 walkthrough shows where Section G and Appendix C sit in the form.
If a laid-off worker is qualified, PERM's labor-market test has found someone. Under 656.17(g)(2), a US worker who can acquire the skills during a reasonable period of on-the-job training is able and qualified, and rejecting them for lacking those skills is not a lawful job-related reason. What the employer does next is its decision with counsel.
Does EO 14431 apply to PERM?
Not by its text. EO 14431 (signed 2026-09-18, 91 FR 60501) directs State, Labor and Homeland Security to take layoffs into account in H-1B matters. We read the full text: it reaches H-1B labor condition applications, petitions, visas and entry, and never mentions PERM, permanent labor certification or green cards.
Section 3(a) asks whether the sponsor "directly or indirectly engaged in layoffs within the previous year" or "plans future layoffs that negatively affect the employment of similarly situated United States workers." It defines nothing and orders no denial, and we found no DOL, USCIS or State guidance implementing it as of 2026-11-01. It gave DOL's Wage and Hour Division 30 days, to about 2026-10-18, to begin reviewing past LCAs; DOL has not said publicly whether that review has begun. Our explainer on EO 14431 and employer layoffs covers the H-1B side.
How the PERM layoff question differs from the H-1B one (as of 2026-11)
| H-1B under EO 14431 | PERM under 20 CFR 656.17(k) | |
|---|---|---|
| Status | In effect as a directive; no implementing guidance found | In effect as a regulation |
| Look-back | "within the previous year", plus planned layoffs | Six months before the ETA-9089 filing |
| Whose jobs | "similarly situated United States workers" (undefined) | Same or related occupation |
| Where | Not defined | Area of intended employment |
| Effect | A factor agencies must take into account; no automatic denial | A notice and documentation duty; a qualified laid-off worker can defeat certification |
| Applied by | DHS, State and DOL | A DOL Certifying Officer |
One layoff can therefore matter twice: in your next H-1B extension and in your PERM. A company that cut jobs has not necessarily stopped sponsoring; our look at whether employers with 2026 layoffs still sponsor H-1Bs explains how to tell.
Do layoffs after PERM filing affect my case?
Form ETA-9089 asks only about the six months "immediately preceding the filing," so a layoff after filing does not change the G.12 answer on an application already filed (our reading). It can still reach you four ways:
- Audit. DOL can request the layoff and recruitment records; FLAG showed audit review at December 2025 priority dates as of 2026-10-21.
- Refiling. A withdrawn or denied case that is refiled gets a new filing date and a new six-month look-back.
- Your own job. If your position is cut, the job offer behind the PERM may be gone. The H-1B grace period of up to 60 days still applies as of 2026-11-01; DHS has only proposed eliminating it (RIN 1615-AD22; comments close 2026-11-10), and the 10-day window the proposal would leave runs from a petition's end date, not from a layoff. Our explainer on the DHS proposal to end the 60-day grace period has the details.
- Your H-1B extension. EO 14431 asks agencies to consider layoffs "within the previous year" whatever stage your PERM is at.
PERM is slow, which raises the stakes of any restart: as of 2026-10-21, DOL's FLAG processing times showed analyst review at January 2026 priority dates and an average of 303 days. Check the live page; the next update is expected around 2026-11-06.
A worked timeline with real dates
You are on H-1B as a software developer in a company's Austin office. Counsel plans to file your Form ETA-9089 on Monday, 2026-12-07. On Friday, 2026-08-14, the company laid off software engineers in the same office.
| Date | What happens | Why it matters |
|---|---|---|
| 2026-06-07 | Six-month look-back begins for a 2026-12-07 filing | Qualifying layoffs from here on count |
| 2026-08-14 | Software engineers laid off in the same office | Same occupation and area, inside the window |
| 2026-09-08 | SWA job order opens; laid-off engineers get written notice and application instructions | Early notice leaves real time to respond, the lesson practitioners draw from Matter of Anthem |
| 2026-09-13 and 09-20 | Two Sunday newspaper ads; the three additional steps for a professional job run in the same period | Standard recruitment under 656.17(e) |
| By 2026-11-07 | Mandatory steps done at least 30 days before filing | 656.17(e)(1)(i) |
| 2026-12-07 | ETA-9089 filed; G.12 answered Yes; Appendix C explains | The recruitment report records each laid-off applicant's outcome |
| After filing | DOL review, then the I-140 if certified | A later layoff does not change G.12, but an audit can ask for records |
If the filing date moves, both clocks move: a later filing changes which layoffs fall inside the six months and can push recruitment past its 180-day limit, which usually means recruiting again. Know the dates anyway, because they drive your H-1B plan: near the six-year limit, a one-year extension beyond it requires a PERM or I-140 filed at least 365 days before the extension would take effect (8 CFR 214.2(h)(13)(iii)(D)). A month's delay in filing can matter more to you than to the company.
Is DOL changing PERM recruitment rules?
Not yet. "Modernizing the Labor Market Test and Improving Protections for U.S. Workers in the PERM Immigrant Visa Program" (RIN 1205-AC29) reached OIRA on 2026-09-14 and concluded review on 2026-10-23 "Consistent with Change", flagged as major (OIRA completed reviews). As of 2026-11-01 it had not appeared in the Federal Register or on public inspection, so there is no text and no comment period.
The only public description is the agenda abstract, which mentions "improving the minimum standards for recruiting qualified U.S. workers," "strengthening safeguards for U.S. Workers impacted by layoffs" and "non-discriminatory recruitment and hiring practices." That is a direction, not content. Once published, it would open a comment period and would still need a final rule; until then, the current 656.17 governs every filing. Our tracker of the unpublished PERM labor-market-test proposal follows it.
Why employers are cautious right now
- Cloudera settled with DOJ and DOL on 2026-10-16: a two-year PERM debarment, a $600,000 civil penalty and a $1.4 million back-pay fund for US workers who tried to apply for seven PERM jobs, resolving allegations that it discriminated against qualified US workers in recruitment (DOJ). A settlement is not a court finding.
- Eight employers (Microsoft, Adobe, Cognizant, Infosys, TCS, Wipro, HCL, Capgemini) face a PERM suspension announced 2026-10-08, with no written notice, stated legal basis or end date. Mayer Brown notes it "does not suspend any employer from the H-1B program" (Mayer Brown); see our breakdown of the DOL PERM suspension and its H-1B impact.
- Volume is high. Challenger, Gray & Christmas counted 43,281 announced US job cuts in September 2026, and 165,925 in tech through September, up 54% (September report). The October report is due 2026-11-05.
What to ask HR when your company has layoffs
- Ask which stage your case is at: prevailing wage (Form ETA-9141), recruitment, a filed Form ETA-9089, audit, or certification.
- Request the planned or actual Form ETA-9089 filing date, so you can count the six-month look-back yourself.
- Ask whether a layoff in that window touched your occupation or a related one in your area of intended employment, and whether item G.12 will be answered Yes.
- Confirm how and when laid-off workers will be notified, and whether that leaves them real time to apply.
- Find out whether the employer will proceed, pause new PERM filings, or re-run recruitment.
- Book a consultation with your own licensed immigration attorney if your H-1B six-year limit, an extension or a job change depends on the PERM date. On OPT or STEM OPT, take SEVIS and reporting questions to your DSO.
In PERM, your employer is the applicant and its immigration counsel acts for the company, so expect general answers; that is why the attorney in step 6 should be your own.
Common mistakes
- Assuming layoffs ban PERM. They trigger a notice-and-consider duty when the tests above are met.
- Assuming any layoff anywhere counts. It must be by your employer, in your occupation or a related one, in your area, within six months before filing.
- Treating EO 14431 as a PERM rule. "Companies with layoffs can't file green cards now" is wrong: the order covers H-1B LCAs, petitions, visas and entry, with no automatic denial.
- Calling RIN 1205-AC29 "the new PERM rules." It is unpublished and applies to no case today.
- Reading the PERM suspension as an H-1B ban. It is PERM only.
Frequently asked questions
Can a company sponsor green cards after layoffs?
Yes. No regulation bars a PERM filing after layoffs. Under 20 CFR 656.17(k), a layoff in the same or a related occupation, in the area of intended employment, within six months before the Form ETA-9089 filing means the employer must notify and consider the potentially qualified laid-off US workers and document the results. The rule is unchanged as of 2026-11-01.
What does the PERM laid-off worker rule require?
Notice, consideration and records. The employer must tell each potentially qualified laid-off worker about the job, genuinely consider anyone who applies, and document the results; a Yes at Form ETA-9089 item G.12 needs an Appendix C explanation. Practitioners read BALCA's Matter of Anthem (2023) as holding that notice sent one day before filing came too late.
Do layoffs after PERM filing affect my case?
Not on the form. The look-back runs six months back from the filing date, so a later layoff does not change the layoff answer on a filed application (our reading of DOL's Form ETA-9089 instructions). It can still matter in an audit, in a refiled case or if your own job is cut, and EO 14431 separately asks agencies to weigh an employer's layoffs in H-1B filings.
Does EO 14431 apply to PERM?
Not by its text. EO 14431, signed 2026-09-18, directs State, Labor and DHS to take an employer's layoffs into account in H-1B matters and never mentions permanent labor certification. As of 2026-11-01 it is in effect as a directive, with no implementing guidance found, no definitions and no automatic denial.
Is DOL changing PERM recruitment rules?
Not yet. DOL's PERM labor-market-test proposal (RIN 1205-AC29) cleared White House review on 2026-10-23 but is unpublished, so there is no text and no comment period. Its agenda abstract mentions recruiting standards, safeguards for US workers affected by layoffs and non-discriminatory recruitment. Until a final rule takes effect, the current 20 CFR 656.17 applies.
Sources
- 20 CFR 656.17 and 20 CFR 656.10
- DOL, Permanent Labor Certification and DOL foreign labor forms
- DOL, Form ETA-9089 General Instructions
- DOL FLAG processing times
- EO 14431, Federal Register and full text on govinfo
- RIN 1205-AC29 agenda entry and OIRA completed reviews
- DOJ, Cloudera settlement
- 8 CFR 214.2
- Practitioner and news sources: Morgan Lewis, Fakhoury Global Immigration via Legal 500, Mayer Brown, CNBC, Challenger, Gray & Christmas
How we checked this: we read 20 CFR 656.17 and 656.10, 8 CFR 214.2(h)(13)(iii)(D), DOL's Form ETA-9089 instructions, the text of EO 14431, the RIN 1205-AC29 agenda entry, OIRA's completed-review list, FLAG and the other sources above on 2026-11-01 and 2026-11-02; Matter of Anthem is described from a practitioner summary, not the decision itself.
This is general information, not legal or tax advice; your own case documents and a licensed immigration attorney (or your DSO for F-1, OPT or SEVIS questions) govern your situation.
A layoff at your company is a reason to ask precise questions, not to assume your green card is over. If you want help finding employers that sponsor while your case sorts itself out, F1Jobs works with international candidates on that kind of search.
Frequently asked questions
Can a company sponsor green cards after layoffs?
Yes. No regulation bars a PERM filing after layoffs. Under 20 CFR 656.17(k), a layoff in the same or a related occupation, in the area of intended employment, within six months before the Form ETA-9089 filing means the employer must notify and consider the potentially qualified laid-off US workers and document the results. The rule is unchanged as of 2026-11-01.
What does the PERM laid-off worker rule require?
Notice, consideration and records. The employer must tell each potentially qualified laid-off worker about the job, genuinely consider anyone who applies, and document the results; a Yes at Form ETA-9089 item G.12 needs an Appendix C explanation. Practitioners read BALCA's Matter of Anthem (2023) as holding that notice sent one day before filing came too late.
Do layoffs after PERM filing affect my case?
Not on the form. The look-back runs six months back from the filing date, so a later layoff does not change the layoff answer on a filed application (our reading of DOL's Form ETA-9089 instructions). It can still matter in an audit, in a refiled case or if your own job is cut, and EO 14431 separately asks agencies to weigh an employer's layoffs in H-1B filings.
Does EO 14431 apply to PERM?
Not by its text. EO 14431, signed 2026-09-18, directs State, Labor and DHS to take an employer's layoffs into account in H-1B matters and never mentions permanent labor certification. As of 2026-11-01 it is in effect as a directive, with no implementing guidance found, no definitions and no automatic denial.
Is DOL changing PERM recruitment rules?
Not yet. DOL's PERM labor-market-test proposal (RIN 1205-AC29) cleared White House review on 2026-10-23 but is unpublished, so there is no text and no comment period. Its agenda abstract mentions recruiting standards, safeguards for US workers affected by layoffs and non-discriminatory recruitment. Until a final rule takes effect, the current 20 CFR 656.17 applies.