Navigating the immigration landscape in May 2026 feels significantly different than it did just a few years ago. As we continue to see fluctuations in the tech sector, many employers find themselves in a difficult “catch-22.” On one hand, you have highly skilled H-1B workers who are essential to your long-term innovation; on the other, recent workforce reductions have triggered complex Department of Labor (DOL) regulations that make sponsoring those same workers for green cards a legal minefield.
If your company has conducted layoffs in the last six months, you are likely wondering: Can we still file a PERM application? The short answer is yes, but the path is significantly narrower and requires a higher level of strategic documentation than ever before.
At Badmus & Associates, we are helping firms navigate these exact hurdles. Understanding the “180-day rule” and how the DOL views recruitment integrity is the first step toward securing your best talent without inviting a devastating audit.
How do layoffs affect your PERM application?
The PERM (Program Electronic Review Management) process is essentially a labor market test. To sponsor a foreign national for a green card, an employer must prove to the DOL that there are no “able, willing, qualified, and available” U.S. workers to fill the position.
When a company lays off workers, the DOL naturally assumes that there are qualified U.S. workers now available in the market. Because of this, a layoff in your organization creates a legal “presumption” that your recruitment for a green card holder might be displacing a U.S. worker who was recently let go.
What is the 180-day rule?
The most critical regulation you need to know is the 180-day rule. Under 20 CFR § 656.17(k), if an employer has conducted a layoff in the “area of intended employment” within the six months (180 days) preceding the filing of a PERM application, they must take extra steps.
Specifically, the employer must:
- Identify all “potentially qualified” laid-off U.S. workers in the same or a related occupation.
- Notify those workers of the job opportunity.
- Consider them for the position in good faith.
- Document the results of this outreach for the DOL.
Failure to do this is one of the fastest ways to trigger an audit or a flat denial. In the current 2026 climate, the DOL is using automated cross-referencing tools to match PERM filings against public layoff announcements and WARN Act notices. You must plan as though the DOL already knows about your workforce changes before you even hit “submit.”
What counts as the “Same or Related Occupation”?
This is where many tech firms run into trouble. You might think that laying off a group of recruiters or marketing specialists wouldn’t affect your ability to file a PERM for a Senior Software Engineer. However, the DOL’s definition of a “related” occupation is broad.
A “related” occupation is any position that requires a majority of the same essential skills and experience as the job offered in the PERM application.
For example:
- If you laid off “Systems Analysts” and are now filing for a “DevOps Engineer,” the DOL may argue these are related.
- If you laid off “Frontend Developers” and are filing for a “Full Stack Developer,” these are almost certainly considered related.
You must analyze the job duties, not just the titles. We recommend a deep-dive audit of the job descriptions of laid-off workers versus the sponsored role before proceeding with any recruitment steps.
The Google Precedent: Navigating Scrutiny in 2026
We can learn a lot from how the industry giants have handled this. In recent years, firms like Google and Meta made headlines not just for layoffs, but for pausing their PERM programs entirely.
Why did they do this? It wasn’t because they didn’t want to sponsor their workers; it was a tactical move to “wait out” the 180-day window. By pausing filings for six months following a major layoff, these companies avoided the mandatory requirement to notify and re-evaluate hundreds of laid-off workers for every single green card application.
For smaller and mid-sized firms, a total pause may not be necessary if the layoffs were localized to a department or a geographic region unrelated to the PERM role. However, the “Google approach” remains the safest route if your layoffs were widespread.
The Impact of Remote Work on PERM Locations
In 2026, the definition of “Area of Intended Employment” has become a major sticking point. Traditionally, this meant the area within normal commuting distance of the job site. But what happens if your company is “Remote First”?
If the PERM position is listed as 100% remote, the DOL may consider the entire United States as the area of intended employment. This means a layoff in your Austin office could potentially impact a PERM filing for a remote worker living in Seattle.
Alert: If your company is filing PERMs for remote H-1B workers, you must be extremely careful. Any layoff of a U.S. worker in a similar role anywhere in the country could trigger the notification requirement. You can read more about these complexities on our immigration news page.
How to “Audit-Proof” Your Recruitment
If you decide to proceed with a PERM filing despite recent layoffs, your documentation must be flawless. The DOL’s “supervised recruitment” or “audit” rates for tech companies are at record highs this year.
To protect your organization, you should:
- Maintain a Layoff Matrix: Document exactly who was laid off, their job titles, their core skills, and their location.
- Document Outreach: If you are required to notify laid-off U.S. workers, keep records of the emails sent, the dates they were sent, and the responses received.
- Provide Lawful Rejection Reasons: If a laid-off U.S. worker applies, you can only reject them for “lawful, job-related reasons.” In the eyes of the DOL, if a worker could be trained for the role within a reasonable period, they may be considered “qualified.”
- Wait if Necessary: If the 180-day clock is close to expiring, it is often better to wait an extra month to file than to risk an audit that could add 12 to 18 months to your timeline.
What if you are the H-1B worker who was laid off?
If you are an H-1B holder reading this because you were part of a layoff, the clock is ticking, but you have options. You typically have a 60-day grace period to find a new employer to sponsor your H-1B transfer.
It is also a good time to explore alternatives to the PERM process. Many high-skilled tech workers are now opting for the National Interest Waiver (NIW) or the O-1 Extraordinary Ability visa, which do not require a labor market test (PERM) or a specific employer’s recruitment efforts. You can explore these green card options here.
The Bigger Picture: Staying Proactive
The 2026 tech economy requires agility. For employers, this means your immigration strategy must be integrated with your HR and talent acquisition strategy. You cannot treat PERM filings as “set it and forget it” administrative tasks.
We are seeing a trend where the DOL is looking for “sham recruitment”, cases where an employer has no intention of hiring a U.S. worker and is simply going through the motions. By being transparent and diligent in your documentation of layoffs, you demonstrate recruitment integrity, which is your best defense against federal scrutiny.
How Badmus & Associates Can Help
The intersection of employment law and immigration law is more complex than ever. Whether you are a startup trying to keep your first lead engineer or a large firm managing a workforce transition, we are here to provide the clarity you need.
Don’t let a layoff derail your company’s long-term talent goals. We can help you:
- Analyze your layoff data against your current PERM pipeline.
- Draft job descriptions that clearly distinguish new roles from laid-off positions.
- Manage the notification and recruitment process to ensure full compliance.
Ready to secure your team’s future?
Schedule a consultation with our expert team today to discuss your specific situation. You can also browse our blog for more updates on the 2026 immigration landscape.
Disclaimer: This article provides general information and does not constitute legal advice. Immigration laws are subject to frequent change. Please consult with an attorney regarding your specific case.
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