H-1B and other skilled workers may face tougher green card process – What is US PERM rule proposal?

The US Department of Labor (DOL) has placed the rule on its regulatory agenda. The proposed change could tighten the process that companies have to follow before they can sponsor foreign workers for green cards.

The rule would change the way the Labor Department handles labour certification, also known as PERM. This is an important step for most employment-based immigrants who want to get permanent residency in the US. 

The proposed changes come as the Trump administration has already introduced several measures aimed at limiting the ability of highly skilled foreign workers to enter or work in the United States.

One such move was a presidential proclamation that imposed a $100,000 fee on the entry of new H-1B visa holders. The administration has also proposed changes to prevailing wage levels, which could make it too expensive for some companies to hire H-1B workers and other employment-based immigrants.

Why the labor certification process matters 

Labor certification is required for most employment-based immigrants. Without it, a highly skilled foreign worker may not be able to move ahead with the green card process and eventually live permanently in the US. 

This is especially important for foreign students who first enter the US on student visas and later move to H-1B status before being sponsored for permanent residence. But getting through the labor certification process can take years. 

The overall process can take two to three years. Even the first step, getting a prevailing wage determination, can take three to eight months. After that, employers have to go through recruitment for at least 60 days, and it can take even longer, according to Forbes report.

PERM itself is often the longest part of the employment-based green card process.

The Department of Labor currently says it takes an average of 403 days to process PERM applications that go through analyst review. Applications under audit review take an average of 290 days.

According to the office of information and regulatory affairs, “The Department will seek to modernise the standards and procedures by which the Department receives and reviews employers’ applications for permanent labor certification by improving the minimum standards for recruiting qualified US workers, strengthening safeguards for US Workers impacted by layoffs, and enhancing employer compliance with program requirements related to non-discriminatory recruitment and hiring practices, and record retention requirements.”

“The rulemaking will result in a labor certification process that better reflects current labor market dynamics and ensures employers experiencing true shortages of high-skilled labor are permitted access to the permanent employment-based immigration process. “

The tech industry could feel the impact

The changes could be particularly important for the technology sector, where US companies depend heavily on international talent. International students make up around 75% to 80% of full-time graduate students in AI-related fields such as computer and information sciences, according to the report. 

Many of these students later move into H-1B jobs after graduation. Some eventually depend on their employers to sponsor them for permanent residency. 

That means changes to the PERM system could affect a large number of highly skilled workers who are already studying or working in the US. 

Does law really require all this recruitment? 

Immigration lawyers and experts have also questioned whether some of the current PERM requirements actually come from US immigration law. Under the existing system, employers have to advertise jobs and consider US workers before they can sponsor a foreign worker.

But the Immigration and Nationality Act does not specifically require companies to advertise jobs in this way. Instead, the Department of Labor created the regulatory system that requires employers to test the labor market through advertising.

Critics say this can waste the time of workers who apply for jobs even though the employer may already have a foreign worker in mind. It can also raise expectations among applicants who may never have been serious candidates for the position.

According to research by Gary Endelman, an immigration attorney and former immigration judge, published in Forbes, the original labour certification rules from 1965 did not require employers to carry out individual recruitment.

Instead, the system initially relied on labour statistics to determine whether enough US workers were available. 

There is also an economic argument against making it harder for skilled foreign workers to enter the US. Research cited in the report found that restricting H-1B workers may not necessarily protect American workers. 

Economists Giovanni Peri, Kevin Shih, Chad Sparber and Angie Marek Zeitlin studied the impact of H-1B visa limits on the US workforce. Their research found that limiting the number of H-1B workers actually slowed job growth for US-born professionals in computer-related industries. 

What could change under the new rule?

The Labor Department says the new rule is aimed at modernising the PERM system. Its plans include changing recruitment standards, improving protections for US workers who have recently lost their jobs and making employers follow stricter rules on non-discriminatory hiring.

The department also wants employers to maintain better records of their recruitment and hiring practices.

The stated aim is to make the system better suited to today’s labour market while making sure companies facing genuine shortages of highly skilled workers can still hire foreign workers through the permanent immigration system.

The new rule could push employers to move from traditional Sunday newspaper ads to online job platforms. At the same time, the Labor Department may closely check whether companies are following fair and non-discriminatory hiring practices.

• Employers could face more audits and may have to provide detailed records of how they advertised jobs and handled applications.
• The rule may also bring stronger protections for US workers who have recently been laid off.
• Companies could face extra notification and hiring requirements if they have recently cut jobs.
• Overall, the changes could mean more paperwork, checks and compliance work for employers.
• For foreign workers, this could add another hurdle and potentially make the green card process take longer. 

Disclaimer: This article is for general informational purposes only and does not constitute legal, immigration, or tax advice. Immigration laws and government policies are subject to frequent change without notice. While we strive to provide accurate updates, readers are strongly advised to verify the latest requirements with the official embassy, consulate, or government portal of the respective country. Financial Express is not responsible for any decisions made based on this information. For personalized guidance, please consult a qualified immigration attorney or a certified professional advisor.