The US Labor Department (DOL) regulations require employers to notify and consider all potentially qualified US workers for the job opportunity listed in a PERM application before it can be approved. If a qualified US worker is willing to fill the job, the employer will not be able to obtain the DOL certification for that position.
Due to these added regulations, big tech companies are likely to pause new PERM applications for the next six months to ensure compliance. This will affect workers on H-1B visas, who can extend their legal status in the US with the help of their employer filing an I-140 employment-based visa petition approved by the Department of Homeland Security. Filing an I-140 can only be done after the DOL approves the PERM application, certifying that hiring a foreign worker will not displace any American workers. Demonstrating that no US workers were overlooked becomes difficult for employers who have recently laid off workers. New PERM filings during this period could leave companies vulnerable to discrimination claims from US workers.
Tech giants have previously faced issues with the PERM program, such as Facebook parent Meta Platforms Inc., which reached a $4.75 million settlement with the Justice Department in 2021 over allegations of reserving jobs for temporary visa holders through the PERM process without considering US workers. Pausing new PERM applications is a precautionary measure for companies like Google, to avoid unwanted attention while laying off workers and potentially ramping up PERM petitions. The pause will end when the layoff news cycle dies down, but this is causing added stress for workers who have already lost their jobs and now face a limited time to find a new employer sponsor to remain in the country.
The H-1B status for foreign workers requires an employer sponsor for their visa, making job changes or promotions difficult. The process of obtaining an approved immigrant worker petition, the final step before a green card application, makes the transition easier. However, the recent pause on processing PERM applications during ongoing layoffs is prolonging the time that workers are stuck in temporary status, unable to find jobs that better suit their skills and circumstances.
Tech companies that have recently announced large layoffs, such as Microsoft, Amazon, and Salesforce, have not commented on their plans for PERM applications. Immigration attorneys believe that the regulations set by the Department of Labor make it difficult for these companies not to follow Google's course. This puts added pressure on H-1B workers who are close to the end of their visa limit and haven't yet had a petition filed for a green card.
"For them, time is running out as PERM processing times are slow," says Krystal Alanis, a partner at Reddy Neumann PC. "Any delays or audits during the process could result in them reaching their maximum time limit." Immigration attorneys have advised companies to start the labor certification process sooner due to growing wait times for Labor Department decisions.
For workers who are just a year into their H-1B tenure, the suspension of new labor certifications is only a minor inconvenience. However, for those who are further into their visa duration, especially workers from countries with longer green card wait times like India and China, it's important to address potential problems.
One solution for some workers is to switch to an H-4 dependent visa when their H-1B runs out if their spouse holds an H-1B visa. Certain spouses on those visas can apply for employment authorization.
US Citizenship and Immigration Services recently reached a settlement to process H-4 visas and work permit applications at the same time as the underlying visa petition, eliminating processing delays for many spouses. Workers at multinational companies can also apply for positions outside the US with the same employer, which may be disruptive for families but stops the clock on the duration of a temporary work visa and allow them to maintain their H-1B eligibility when they return. "With some creative management, companies can handle this situation," says Bae.
