To achieve L-1A or L-1B visa status, Goldfarb says, a foreign employer must have some sort of affiliate, parent, subsidiary or branch relationship with a U.S. employer and an individual must have worked with the foreign employer for at least a year in the past three years before coming to the U.S. If an employee with L visa status is laid off, the same 60-day grace period applies for them to find another position with an affiliate of their previous employer. “If that relationship breaks, they’re no longer allowed L visa status, so they must find another opportunity, another visa or they have to go home,” Goldfarb says.
Guidelines for laying off employees with green cards
For workers to gain permanent residence, employers must sponsor them for a green card. In order to achieve that, employers must go through the PERM process (Program Electronic Review Management), which is driven by the Department of Labor. The PERM process requires an employer to show that no qualified, willing or able U.S. workers are able to fill a position that the employer wants to hire the foreign worker for.
“It’s an arduous process that requires the employer to create a standard prototype job description they can use to sponsor an individual,” Goldfarb says. “Employers also must go through at least a one-month recruitment period where they make the job available to U.S. workers.”
If an employer conducted a layoff in the occupation for a similar position during the six-month period before submitting all sponsorship documents, Goldfarb continues, then the employer must document it has notified and considered potentially qualified laid off U.S. employees within the occupation in the same job location. “A lot of times that’s the basis for causing the sponsorship to fail, which requires employers to redo everything from the beginning, incurring additional recruitment costs and likely additional fees,” Goldfarb says. “It also puts the employee in a position where it could delay their ability to get a green card.”
When it comes to mergers and acquisitions, Goldfarb says the general rule is that when it’s a stock acquisition, there’s no need to re-petition the government because the sponsorship carries over and the company assumes all assets and liabilities. However, if it’s an asset purchase or the company isn’t acquiring all the liabilities, there need to be new sponsorship.