Temporary and Permanent U.S. Immigration Options for Information Technology Workers

U.S. employers seeking to bring foreign information technology (IT) talent to the United States, and IT workers seeking ways to obtain authorization to work in the United States, have several options.  Some of these are geared at college students or recent graduates seeking temporary training, and others are more suitable for degreed professionals,  with increased options for senior or well-established members of the profession. Here is an overview of the most common U.S. visa categories for the IT industry:

Temporary Work Visa Categories:

  • For foreign trainees and interns: J-1 intern up to 12 months (for those currently pursuing post-secondary education outside the U.S. or who graduated no more than 12 months ago) OR J-1 trainee up to 18 months (for those with a foreign degree + 1 year of work experience or 5 years of work experience abroad) – run through U.S. Department of State; H-3 Trainee for up to 24 months (for those seeking training that is not available in the home country, and which will benefit the individual’s career abroad) – run through U.S Citizenship & Immigration Services.
  • For foreign students in the United States: F-1 on-campus employment; F-1 curricular practical training (CPT; i.e., on the job training that is part of the curriculum); F-1 pre-or post-graduation optional training (OPT) for up to 12 months; and F-1 STEM OPT extension for up to an additional 24 months (for those with a U.S. degree major in a STEM field and whose employer is enrolled in E-Verify).
  • For degreed professionals (at least U.S. or equivalent foreign bachelor’s degree in an IT or closely related field):  TN U.S.-Mexico-Canada Free Trade Agreement professionals in increments of up to 3 years (no max), for computer systems analysts and possibly software engineers under “engineers”; H-1B1 Chile or Singapore or E-3 Australia professionals in up to 2 years increments (no max); H-1B specialty occupation (most common, might be subject to annual lottery) for up to 6 years max in up to 3-year increments (with exceptions to max based on pending green card process).
  • For degreed or non-degreed IT workers: L-1A intracompany transferee (manager/executive) for up to 7 years; L-1B intracompany transferee (specialized knowledge) for up to 5 years – however, L-1B individuals applying abroad based on the employer’s blanket L petition must be degreed professionals (very common for large, global IT service providers).
  • For nationally or internationally renowned professionals: O-1 person of extraordinary ability for initially up to 3 years and then in 1-year increments, with the ability evidenced by awards, publications and published material about the individual, and similar evidence such as patents (not impossible, but challenging in the IT industry as employer-independent awards are rare).
  •  Via a commercial treaty between the United States and the country of citizenship of the investor and/or employee – the U.S. business must share that nationalityE-1 treaty trader or E-2 treaty investor, either as the investor or as a managerial or specialist employee (document-wise complicated and therefore likely underused; no max, admission in up to 2-year increments with visa stamp permitting travel usually valid for 5 years).

Permanent (Green Card) Work Visa Categories:

  • For multi-national managers/executives: EB-1-3 (similar to L-1A; no test of the U.S. labor market required).
  • For nationally or internationally renowned professionals: EB-1-1 person of extraordinary ability (self-petition possible) or EB-1-2 outstanding researcher/professor (both similar to O-1 but higher standard; no test of the U.S. labor market required); EB-2 advanced degree holder or person of exceptional ability + national interest waiver (where the IT work would have substantial merit and national importance; no test of the U.S. labor market required; self-petition possible but challenging in the IT industry).
  • For those not qualifying under the above: EB-2 advanced degree holder or person of exceptional ability or EB-3 professional or skilled worker PERM application for labor certification = test of the U.S. labor market with U.S. Department of Labor prior to filing petition with U.S. Citizenship & Immigration Services.

Immigration counsel can help IT employers and individuals determine what options are feasible, and advise on expected timing and cost.

2021 PERM Labor Certification Updates: Processing Times Increase, COVID Accommodations Continue & Prevailing Wages are back to Normal

There are several noteworthy developments in the PERM labor certification world requiring employers and practitioners to rethink how to time PERM applications and to (once again) adapt their processes front-to-end. The COVID-19 pandemic combined with high unemployment rates, as well as U.S. Department of Labor (DOL) efforts to change the prevailing wage system, and an apparent increase in scrutiny of PERM applications, have all contributed to a change in the PERM landscape. Below are the top 5 developments employers and practitioners have been facing with respect to PERM preparation and filing: Continue reading “2021 PERM Labor Certification Updates: Processing Times Increase, COVID Accommodations Continue & Prevailing Wages are back to Normal”

H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration

A challenge brought by the U.S. Chamber of Commerce to the new H-1B wage levels and the new definition of “Specialty Occupation”  was upheld by the United States District Court for the Northern District of California on December 1, 2020. The plaintiff’s Summary Judgement motion was granted when the Court held that the government failed to demonstrate good cause for not following the normal notice and comment procedures required for immigration regulations.  The government’s failure to follow the proper rulemaking procedures makes the new rules invalid and requires them to be rescinded by the government. Continue reading “H-1B Wage Rules Rescinded – Another Win for Employment-Based Immigration”

PERM Gets Rough in an Uncertain Job Market

Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.

Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries. Continue reading “PERM Gets Rough in an Uncertain Job Market”

TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC

On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.

Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window. Continue reading “TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC”

Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19

Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees).  Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny  by the DOL are expected in the short and long term, making it imperative that employers have all of their I’s dotted and T’s crossed when completing the PERM steps.

Nowhere are the details more important than when completing the required PERM “Notice of Filing” step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a “Notice of Filing,” for the employees at the worksite to see for 10 consecutive business days, commonly called a “wall” Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.

During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html

Continue reading “Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19”

PERM Business Necessity – Back with a Splash?

The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.

Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not “normal,” the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.

Recent DOL PERM audits are now requiring that an employer explain why the employer’s job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants. Continue reading “PERM Business Necessity – Back with a Splash?”

USCIS Regulatory Proposals Aim to Improve Immigration Process for High-Skilled Foreign Workers

The White House is continuing to slowly roll out many of the 2014 promised changes to improve the U.S. immigration system.  New regulations,  published in the Federal Register on December 31, 2015 seek to modernize and improve certain employment-based immigrant and nonimmigrant visa programs for high-skilled foreign workers. Benefits to participants in those programs would include improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for such workers; and more transparency and consistency in the application of DHS policy.

Many of these changes are aimed at improving the ability of U.S. employers to hire and retain high-skilled foreign nationals who are already the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while also increasing employment flexibility for such workers. The proposed regulations would increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities in the U.S. job market.

Some of the highlights of the proposed rule include:

Improved Job Portability with an Approved I-140:
The proposed rule would limit the grounds for automatic revocation of approved I-140 Petition for Immigrant Worker. Once an I-140 has been approved for 180 days or more, it will still be valid for purposes of retaining one’s priority date and extending one’s H-1B status, even if the employer subsequently withdraws the petition or the employer’s business shuts down. The exception to this rule would be cases of fraud, misrepresentation, and a few other limited situations.

One-Time Grace Periods
The proposed rule would authorize a one-time grace period for certain nonimmigrant workers of up to sixty (60) days after employment ends, or until the existing validity period ends, whichever is shorter. This grace period would apply to those in H-1B, E, L-1, and TN status. Similar flexibility already applies to F-1 nonimmigrant students and j-1 nonimmigrant exchange visitors.

Eligibility for Employment Authorization in Compelling Circumstances
The proposed rule would allow certain high-skilled individuals in the United States in H-1B, H-1B1, L-1, O-1, or E-3 nonimmigrant status who are the beneficiaries of an approved I-140 petition to apply for one year of restricted employment authorization if they:

  1. are unable to adjust status due to visa backlogs; and
  2. can demonstrate “compelling circumstances” which justify issuing an employment authorization document.

At this time, DHS has not defined the term “compelling circumstances,” however the proposed rule offers possible examples such as serious illnesses/disabilities or cases of employer retaliation. Accordingly, this benefit will likely only apply in very limited circumstances.

Automatic Extensions of EAD Work Authorization in Certain Circumstances
The proposed rule would amend the way USCIS processes applications for employment authorization to help prevent gaps in work authorization that are problematic for foreign nationals and their U.S. employers. Specifically, DHS is proposing to repeal the current regulations that require the issuance of interim EADs if the I-765 application for work authorization (“EAD”) has been pending more than 90 days. Under the new rule, USCIS will automatically extend the EAD for up to 180 days upon the timely filing of a renewal application for applicants who meet certain requirements. To be eligible for this benefit, the renewal application must be based on the same employment authorization category as the expiring EAD, among other requirements.

The proposed rule also clarifies various policies and procedures related to the adjudication of H-1B petitions, including extensions of status, determining cap exemptions, and counting workers under the H-1B visa cap.

USCIS is seeking public comment on the proposed rule through February 29, 2016. The proposed changes would take effect on the date indicated in the final rule once it is published in the Federal Register.

Special thanks to Christina Haines, Esq. for her assistance with this blog post.

Unfair Immigration-Related Hiring Practices: Employers Beware

In recent years the Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices (OSC) has stepped up enforcement against employers who commit violations during the hiring process.  The primary source of information for the commencement of investigations against employers is a Department of Justice Hotline for workers  who believe they have been mistreated by potential employers during the hiring process. Attorneys at the OSC follow up on every hotline call, often contacting employers directly to educate them and obtain additional information.  From its experience on the hotline, the OSC has compiled a list of the most common hiring violations it encounters. While many seem obvious, they are worth reviewing with human resources staff, as they continue to reoccur and cost employers significant civil fines and pack pay awards.

Refusing to hire workers who sound or appear foreign: Employers have been fined and required to pay back wages to non-U.S. citizen workers who were rejected on the basis of employer blanket policies of rejecting applicants who sounded or appeared to be foreign. There are many non-U.S. citizen workers who are authorized to work for any employer in the United States, include Legal Permanent Residents, Asylees,  and Refugees.

Preferring to hire U.S. citizens is also an unfair employment practice,  unless a law, regulation, government contract, or executive order requires that the position be filled by a U.S. citizen. Employers have been prosecuted by the OSC for including  “citizen only” type language in employment advertising or application materials, as well as for communicating this preference to applicants during the hiring process.  Fines for this violation have ranged as high as $100,000 in prior years.

Hiring non-immigrant visas holders while rejecting qualified U.S. citizens and lawful permanent residents who apply for the same jobs. Employers have been subject to investigation and fines during the H-2B application process after they did not hire U.S. citizens and green card holders who applied for the H-2B advertised jobs.  This type of investigation is even more troublesome as it arises out of an information sharing agreement between the Department of Labor and the Department of Justice. Significant back pay awards to the affected workers are common in this type of case.

Hiring undocumented workers instead of employment-authorized individuals. The OSC is vigilant about investigating this type of complaint, which is often presented when a terminated worker complains about being replaced by an undocumented worker.  The typical remedy is reinstatement and back pay for the affected worker.

No Duty to Sponsor: In spite of all of these admonishments, it is important to remember that employers have no obligation to “sponsor” any worker for immigration status under any circumstances.  This means that, there is no obligation to file an H-1B petition or green card application on behalf of any employee. Foreign nationals  who do not have unlimited work authorization to work for any employer in the United States are not protected by anti-discrimination provisions in the Immigration and Nationality Act.  However, employers should  still beware of treating various classes of foreign national employees differently.  Having sponsorship policies in place, which include a time frame for the decision to sponsor as well as specific criteria and manager recommendations, is a best practice that allows employers to have defined criteria  and time frames to review each individual employee  for sponsorship consideration.