Employers Avoid Knee-Jerk Reactions to Green Card Sponsor Bans

Suspensions blocking Microsoft Corp. and other tech companies from sponsoring employees’ green cards are adding a cloud of uncertainty for employers seeking to add or retain foreign talent. But businesses should stay the course on applications for permanent labor certification, or PERM, for now, attorneys are advising. That’s in large part, they say, because the Trump administration hasn’t identified specific violations by the technology companies targeted in the latest crackdown on foreign employment. “The reality, though, is that this action is going to have its intended effect, which is to make employers think twice about hiring and sponsoring foreign workers,” said Heather Frayre, an attorney at Dickinson Wright PLLC. Vice President JD Vance and Labor Secretary Keith Sonderling last week announced suspensions of PERM applications for some of the biggest employers of H-1B workers most heavily concentrated in the tech industry, alleging unspecified abuses of visa programs identified in ongoing investigations. While the Department of Labor has taken a leading role in policing the specialty occupation visa program, several high-dollar Justice Department settlements still offer the clearest signal of violations that could land businesses in hot water with federal regulators. A DOJ spokesperson confirmed that the agency opened investigations into Microsoft and Adobe Systems Inc. before they were suspended from the labor certification program, but didn’t share further details. Labor Market Test Companies submitting labor certifications typically do so on behalf of employees already working for them through the H-1B visa program or another temporary status. Submitting PERM applications allows those workers to continuously renew their status until they secure a green card. Although the DOL administers the PERM program, the Justice Department since President Donald Trump’s first term has played an active role in investigating violations of anti-discrimination provisions of the Immigration and Nationality Act connected to the process. Multiple settlements reached by the DOJ with employers — most recently artificial intelligence company OpenAI — have zeroed in on recruiting and advertising practices that it said put US job applicants at a disadvantage. Before filing a PERM application, businesses must demonstrate that no qualified Americans are interested in applying first. DOJ investigations have found that job postings and application portals didn’t give US workers a real opportunity to apply for roles at companies like Meta Platforms Inc. and Apple Inc. Those enforcement actions still give employers the best insight on compliance without additional guidance from the administration, said Kimberley Robidoux, a partner at WR Immigration. Businesses try as much as possible to treat recruitment for those PERM positions the same as other openings, she said. “We don’t really know how a client should pivot — if they even need to pivot,” Robidoux said regarding labor certifications. Outdated Regulations Vance and other officials who announced the PERM suspensions for the tech and IT staffing firms said those businesses should do more to hire Americans, accusing them of laying off US workers and replacing them with “indentured servitude.” The DOL cited a Justice Department lawsuit against one Silicon Valley firm earlier this year to suspend processing of its labor certifications. Inspector General Anthony D’Esposito has put a spotlight on the program in recent weeks on social media and TV appearances. Even before agency leaders announced the latest suspensions from the program, the Labor Department was preparing to overhaul PERM regulations that haven’t been significantly updated since 2004. A proposed rule focusing on recruitment standards for American workers is currently under White House review. The agency has wide latitude under existing regulations to suspend employers when it learns of possible fraud or misrepresentation until the conclusion of investigations or judicial proceedings, said Adam Cohen, a partner at Siskind Susser PC. But mandates under outdated rules — such as newspaper advertisement requirements cited by Vance last week — can conflict with pressure from DOJ to make PERM recruitment and hiring processes mirror those for other roles, attorneys said. “There are a lot of differences in terms of what the Department of Justice is looking for and what the Department of Labor is mandating,” he said. Upending Worker Plans Microsoft in a statement responding to the suspension said the vast majority of the company’s employees in the US are Americans. Filings in the past year for new H-1B workers — not including extensions — were equal to 1% of its workforce, it said. The company didn’t respond to a request for comment from Bloomberg Law on the PERM processing suspension. Adobe, Cognizant Technology Solutions Corp., Infosys Ltd., Tata Consultancy Services Ltd., Wipro Ltd., HCL Technologies Ltd., or Capgemini SE similarly didn’t respond to requests for comment. Those companies have historically ranked at the top of H-1B users. But many smaller employers that may only sponsor a handful of employees for green cards could be scared out of submitting labor certifications, said Lynn O’Brien, immigration practice leader at Womble Bond Dickinson. “These are the kinds of things that keep immigration attorneys up at night,” she said. “We’re damaging US companies who don’t have big armies of attorneys or the big pocket books of larger organizations.” In addition to compliance challenges for employers, the enforcement actions also could disrupt the lives of many workers who aren’t able to continue working on H-1Bs if PERM applications are blocked, said Alexis Axelrad, a partner at Barst & Mukamal and president-elect of the American Immigration Lawyers Association. “So it’s not just, oh, these companies are being told, no, you can’t do this,” she said. “Somebody’s life is being upended by this, both the foreign national and who the foreign national works with and for.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.