December 11, 2023

Immigration Green Card

Immigration Is Good For You

Rolling Tech Layoffs Snag Green Card Prospects for H-1B Workers

5 min read

A deluge of layoffs at Google LLC and other tech companies is throwing a wrench into immigrant workers’ green card plans, even if they managed to keep their jobs as their employers reduced their head counts.

Google is pausing its filing of new labor certifications—known as PERM applications—to ensure compliance with US Labor Department regulations, a company spokesperson said. The company, however, will continue to pursue applications already filed that are still pending at the DOL, the spokesperson said.

PERM applications are a preliminary step to sponsoring a worker for an employment-based green card and critical to H-1B specialty occupation workers’ ability to extend their stay in the US beyond the usual six-year limit.

But the pause in applications, combined with growing processing backlogs at DOL, is adding to the anxieties of workers who survived a layoff that put many fellow temporary visa holders on a short time line for finding new employer sponsors in order to remain in the country.

DOL regulations require that all potentially qualified US workers in the same or similar occupations who an employer laid off within 180 days before a PERM application is filed be notified of and considered for the job opportunity listed in the application. If a qualified US worker is willing to fill an opening, the employer won’t be able to get DOL certification for a position.

The added regulatory requirements after a layoff means that big tech firms will likely adopt a blanket pause on new PERM applications for the next six months to ensure they’re in compliance.

“People’s hands are tied for six months. And this is after the last layoff,” said Xiao Wang, co-founder and CEO at Boundless Immigration, a platform that helps users navigate the US immigration system. “There are companies that have had multiple rounds for layoffs so the process will keep getting pushed back.”

Hitting Pause

Workers on H-1B visas—common in the tech industry and other white-collar jobs—can extend their legal status for three years at a time if their employer files an I-140 employment-based visa petition that’s approved by the Department of Homeland Security. Their status can be extended by one year if an immigrant worker petition or PERM application has been pending for at least 365 days.

Filing an I-140 can only be done after the DOL approves the PERM application, certifying that hiring a foreign employee won’t displace any American workers. Demonstrating that no US workers were overlooked becomes exceedingly difficult for employers that have recently announced layoffs.

New PERM filings in that period could leave companies open to a claim of discrimination by a US worker, said Davis Bae, co-chair of the immigration practice group at Fisher & Phillips LLP.

“It might just be easier to say ‘we’re just going to pause it,’” he said. “That’s what we’re seeing a lot of with bigger programs.”

Tech giants previously have run afoul of regulators for use of the PERM program. The Justice Department reached a $4.75 million settlement with Facebook parent Meta Platforms Inc. in 2021 over allegations that it had routinely reserved jobs for temporary visa holders through the PERM process without considering US workers.

“Pausing new PERM applications isn’t going to change much of anything because the pause will end when the layoff news cycle dies down,” said Kevin Lynn, founder of US Tech Workers, a group that’s critical of temporary visa programs. “Google is just taking precautionary measures because it doesn’t want to incite any unwanted attention while it’s laying off workers only to have it leaked to the public it’s simultaneously ramping up PERM petitions.”

Time Running Out

H-1B status requires that foreign workers have an employer sponsor their visa, which makes jumping to a different job or even taking a promotion within the same company difficult. Securing an approved immigrant worker petition—the last step before a green card application—lowers those barriers.

The pauses on PERM applications amid the ongoing layoffs prolong the period that workers are locked into temporary status without that flexibility to find new jobs to better suit their skills and circumstances, Wang said.

Other tech companies that recently announced large layoffs—including Microsoft Corp., Inc., and Salesforce Inc.—didn’t immediately respond to requests for comment on their PERM plans. Immigration attorneys say the DOL regulations make it impractical for those companies not to follow Google’s course.

That reality puts added pressure on H-1B employees close to the end of their visa’s limit whose employers haven’t yet filed a petition to sponsor them for a green card.

“For them, time is of the essence because PERM processing times are incredible right now,” said Krystal Alanis, a partner at Reddy Neumann PC. “If there’s an audit on their application or anything else that happens along the way, they’ll be nearing their max out time.”

Immigration attorneys recently have urged companies to start the labor certification process sooner because of growing wait times for Labor Department decisions.

‘Creative Management’

For workers who may be just a year into their total H-1B tenure, the suspension of new labor certifications is just an inconvenience, Bae said.

But for those further into their visa duration—especially workers from countries like India and China with longer green card wait times—it’s important to get in front of any problems, he said.

The solution for some workers could be as simple as switching to an H-4 dependent visa when their H-1B runs out, if their spouse also holds an H-1B. Certain spouses on those dependent visas can apply for employment authorization.

US Citizenship and Immigration Services reached a settlement of a class action last week in which it agreed to process H-4 visas and work permit applications at the same time as the underlying visa petition, clearing processing delays for many of those spouses.

Workers at large multinational companies could also apply for positions with the same employer outside the US. While potentially disruptive to families, that kind of move would stop the clock on the duration of a temporary work visa and allow them to maintain their remaining eligibility on an H-1B when they return.

“People think it’s the end of their immigrant dreams and it’s not,” Bae said. “With some creative management, companies can work through this just fine.”


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