Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
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I handle HR and immigration at our tech company. We filed a PERM for one of our team members about five months ago for her EB-2 green card, and we’re awaiting certification from the Labor Department. We’ve been gearing up to start PERM for another employee.
Will the layoffs in the tech industry affect the PERM process for EB-2 and EB-3 green cards? What will happen to my team members’ green cards if our company has to do layoffs?
— Pondering in People Ops
It’s wonderful that you’re steadfastly supporting your team with green card sponsorship. This can provide unfathomable peace of mind for people still on non-immigrant status in the U.S. through the green card process. We’re here to help ease the holiday season with education on the options for both companies and individuals.
Let’s dive into the winter wonderland of PERM and employment-sponsored green cards.
Will tech layoffs impact the PERM process?
For the permanent labor certification application — or PERM — your company is currently working on, the short answer is yes, the layoffs may have several different effects depending on where your company is in the process.
The PERM green card process is a multistep and time-intensive one involving a labor market recruitment test requiring employers to demonstrate to the U.S. Department of Labor (DOL) that there are no qualified U.S. workers (U.S. citizens and green card holders) who are qualified, willing and able to fill the EB-2 or EB-3 PERM position. PERM also aims to ensure that the opportunities, wages and working conditions of U.S. citizens and green card holders are protected.
If you are in or will soon start the PERM recruiting phase, you may receive a larger number of job applicants for your job posting due to the recent layoffs in the tech sector. With an uptick in potentially qualified applicants, it could prove more difficult to demonstrate that there is no qualified U.S. worker to fill the PERM role. If a qualified U.S. worker is ready, willing and able to fill the PERM role, the labor market test fails and the DOL will not grant the company’s PERM labor certification.
Keep in mind that unemployment is a big concern for the DOL. During the last recession, when millions of jobs were lost, DOL increased its scrutiny of the adjudication of PERMs, particularly within the financial sector, to ensure displaced U.S. workers were considered for positions before international talent.
At the moment, the U.S. unemployment rate is under 4%, so we have a ways to go before we match the 10.6% unemployment rate in 2010. Although there have been many layoffs in tech, I remain optimistic, as there are other indicators that the economy is still strong and there are many job requirements in and beyond the tech sector.