Despite greater scrutiny and restrictions on green card sponsorship, employers should still go ahead with permanent labor certification. Currently, none of the violations by the companies in question are proven. As Bloomberg Law points out, the crackdown is intended to prompt employers to think again about hiring and sponsoring foreign workers.
What the Suspension Does
The majority of employment based green cards begin with PERM labor certification. The employer must demonstrate that there are no qualified and able U.S. workers available to do the job. The employer may file Form I-140 with USCIS only after the Department of Labor certifies the application.
These eight companies are suspended from PERM as of now. The changes do not impact existing H-1B visas. The main risk is for those who still require a PERM filing, such as those on the verge of hitting the six-year H-1B cap or wish to establish a priority date.
The Department of Labor has extensive authority to suspend processing when investigating potential fraud or misrepresentation. The suspension may continue until the investigation, or any related legal proceeding is concluded. There is no set end date for the suspensions, which will remain in place until they are no longer necessary, Vance said. Vance said the suspension would last as long as necessary. No end date has been set.
DOL and DOJ Are Looking at Different Things
Two agencies are involved, and they don’t always agree. The Department of Labor (DOL) administers the PERM program. As mentioned above DOL is who suspended these. The DOJ is tasked with making sure that companies are not discriminating against American workers when recruiting under PERM. They will investigate if there was discrimination under the INA. The DOJ has stated that they began their investigation into Microsoft and Adobe prior to the suspension.
The friction comes from the rules. DOL’s PERM regulations haven’t been meaningfully updated since 2004, and they still require things like newspaper ads. The DOJ would like to see PERM recruiting be similar to any other job opening. In their settlement agreements with Meta, Apple and now OpenAI they have cited ways that jobs were advertised and methods of applying that did not allow for US workers to apply. Even if an employer meticulously adheres to the DOL’s guidelines, they might still face scrutiny from the DOJ.
DOL is working on new rules. There is a proposed rule that will change the recruitment requirements for the PERM program currently being reviewed by the White House. Employers will need to meet current requirements as well as these new requirements once issued.
As always, ILBSG actively monitors ongoing U.S. immigration news. If you have questions about any U.S. immigration related issue, contact us. Working with an experienced attorney ensures you get the right advice based on the most recent laws. In an ever-evolving immigration policy landscape, it’s particularly critical you get the right advice.