USCIS and DOL Policy Updates May Allow More Employers to Circumvent Protections for American Workers
By Elizabeth Jacobs on May 8, 2024
USCIS issued a policy update on April 10, 2024, that may expand which types of occupations can circumvent U.S. labor market protections that are required by federal law for employers to sponsor a foreign worker for a green card. By adopting the Department of Labor’s (DOL) definition of which occupations are considered “Schedule A”, USCIS is attempting to streamline how employers can petition foreign workers for green cards at the expense of the already minimal U.S. worker protections. This policy update comes at the same time DOL is considering amending its own regulations to add STEM occupations to the “Schedule A” list. Notably, an employer trying to fill a position in a “Schedule A” occupation may petition USCIS for a foreign worker without first trying to hire an American worker for that position.
Typically, federal law requires employers who wish to petition for an immigrant worker to conduct a labor market test and submit a permanent labor certification application to the DOL Employment and Training Administration (ETA) in a process known as PERM. This process, when completed, allows an employer to hire a foreign worker to work permanently in the United States and allows that foreign worker to receive a green card (i.e., obtain lawful permanent resident status). Green card holders may eventually become citizens or may live and work in the United States as LPRs indefinitely if they choose not to naturalize.
The purpose of the PERM labor certification is to both protect the U.S. labor market from unfair competition and to maintain the working conditions of domestic jobs. While the PERM program is far from perfect and subject to substantial fraud, as reported by the DOL Office of Inspector General (OIG), it is the main tool used by the U.S. government to prevent U.S. workers from being replaced with foreign workers benefiting from the employment-based immigrant visa categories. (The PERM process does not apply to foreign workers seeking to enter the United States on nonimmigrant (temporary) visas.)
https://cis.org/Jacobs/USCIS-and-DOL-Policy-Updates-May-Allow-More-Employers-Circumvent-Protections-American
