Tech companies struggle with green card sponsorships amid job cuts, but a proposed rule change, sought by the industry, could exempt certain tech jobs from labor market tests.
Amid a series of layoffs, tech companies are finding it increasingly difficult to sponsor foreign workers for employment-based green cards due to stringent labor rules designed to protect U.S. workers. The process, governed by the Program Electronic Review Management system, mandates job advertising to ensure U.S. workers are not adversely affected.
However, President Joe Biden's administration is considering a green card rule change that could significantly alter this landscape. The proposed exemption could be applied to a broad range of tech occupations including, notably, software engineering -- which represents about 1.8 million U.S. positions, according to U.S. labor statistics data -- and would allow companies to bypass some labor market tests if there's a demonstrated shortage of U.S. workers in an occupation.
Specifically, the Biden administration is looking to update the Department of Labor's Schedule A Shortage Occupation List to include STEM occupations. This list, which hasn't been updated in decades and is focused primarily on healthcare, exempts listed occupations from Program Electronic Review Management (PERM) requirements such as advertising job openings in newspapers, on the employer's website, at jobs fairs and other steps. Tech companies have latched on to the Schedule A list as a means to cut green card processing time and government regulation.
Microsoft, one of the tech leaders in Washington seeking tech-related immigration reforms, is lobbying for the inclusion of tech roles on this list. Citing its own research from LinkedIn, a business it owns, Microsoft anticipates significant labor shortages in fields such as software engineering, cybersecurity and data science.
Similarly, Google this week said it supports the Schedule A change, citing occupations "critical to the U.S.' national interests," including software engineering, AI engineering, and privacy and safety engineering.
Layoffs could draw interest
This push to change the green card rule coincides with companies such as Amazon suspending green card sponsorship programs due to layoffs and legal complexities.
"Due to government requirements for the green card process, we have temporarily paused our permanent labor certification program," said Margaret Callahan, an Amazon spokesperson, in a statement to TechTarget Editorial. "We're working hard to support [these workers] and find alternate immigration pathways as soon as possible."
When layoffs are prevalent, the rationale behind these visas becomes questionable.
Victor JanulaitisCEO, Janco Associates
The tech industry has eliminated more than 80,000 jobs so far this year, according to industry layoff tracker Layoffs.fyi, complicating the green card hiring process that requires first seeking qualified Americans.
"The goal of employment-based visas and H-1B work visas is to supplement unavailable skills domestically," said Victor Janulaitis, CEO of Janco Associates, a labor market analysis firm. "But when layoffs are prevalent, the rationale behind these visas becomes questionable."
Amazon didn't detail which government regulation is a burden, but employers are required to provide notice to laid-off U.S. workers who are potentially qualified for job opportunities involved in PERM labor certification applications filed within six months of the layoff, under U.S. rules.
Critics argued that the PERM process is often circumvented as employers might prefer to retain H-1B visa holders by transitioning them to green cards, sometimes at the expense of potential U.S. candidates. But trying to work around the requirements to seek a qualified U.S. worker can be perilous for employers.
In 2020, Facebook, now Meta, faced a lawsuit from the Justice Department, alleging it deterred U.S. workers from applying for certain positions. One such alleged deterrence was a Facebook requirement that U.S. applicants mail their applications. The company eventually settled for $4.75 million in civil penalties and up to $9.5 million to eligible victims of alleged discrimination.
The Labor Department's process for including occupations on the Schedule A list is unclear. The American Immigration Lawyers Association (AILA) is recommending use of objective labor market data, such as wage increases, vacancies and unemployment rates, to decide what tech occupations should join the Schedule A list.
Updating the Schedule A list with STEM occupations could remove requirements and significantly reduce green card processing times by 13 to 20 months, said Sharvari Dalal-Dheini, AILA's director of government relations. The green card process now takes more than 40 months with PERM, she said.
The U.S. plans to continue accepting comments on the proposed rule change until May 13.
Patrick Thibodeau is an editor at large for TechTarget Editorial who covers HCM and ERP technologies. He's worked for more than two decades as an enterprise IT reporter.
