PERM ban is not just an H-1B problem: Who else could lose their green card path?

The US Department of Labor's suspension of PERM filings by certain IT companies could affect more that just H-1B workers. The action targets the employer-sponsored green card process, which is used by foriegn workers across several temporary visa categories. L-1, O-1, TN, E-3 and F-1 OPT workers could also face delays if their employer's green card application depends on PERM.

The suspension does not cancel these workers' existing visas. However, it could delay their route to permanent residency, and in some cases, make it harder to remain in the US long term.

Also Read| Microsoft defends foreign hiring after US green card programme suspension

PERM is a green card process, not an H-1B process

PERM, or Permanent Labour Certification, is usually the first step in the employer-sponsored green card process.

Before sponsoring a foreign worker, an employer must generally show the Department of Labour that it has tested the US labour market and could not find a qualified, willing and available US worker for the position. The employer must also meet wage and recruitment requirements. After the Department of Labor certifies the PERM application, the employer can file an I-140 immigrant petition with US Citizenship and Immigration Services. The worker may later apply for adjustment of status or an immigrant visa, depending on the worker's circumstances.

This means the PERM ation affects the green card pipeline. It does not, by itself, suspend H-1B visas.

H-1B workers are still the biggest group at risk

H-1B workers are likely to be the most visble group affected because many tech professionals use H-1B status while waiting for employer sponsored green cards.

An H-1B worker can generally remain in that status for up to six years. Workers who are close to that liit may reply on progress in the PERM and I-140 process to qualify for exensions beyond six years.

USCIS rules allow certain H-1B workers to seek an extension beyond the six-year limit if at least 365 days have passed since a PERM labour-certification application or an immigrant petition was filed on their behalf. Other extensions may be available where an employment-based immigrant petition has been approved but the worker is waiting for an immigrant visa number.

A PERM delay can therefore create a bigger problem for H-1B workers nearing the end of their authorised stay. The issue is not that their H-1B visa is immediately cancelled, but that their next extension or long-term immigration option could become more difficult.

L-1 workers could also face delays

L-1 visas are used by multinational companies to transfer executives, managers and specialised-knowledge employees to the US.

Some L-1 workers later seek employer-sponsored green cards through PERM. If the sponsoring company cannot file or complete the labour certification, those workers could see their permanent-residency plans delayed.

The impact may be different for L-1 executives and managers who qualify for the EB-1C green-card category. That category generally does not require PERM. Therefore, not every L-1 worker depends on the labour-certification process.

F-1 students and OPT workers are not automatically protected

Foreign students who complete their studies in the US may work under Optional Practical Training, including STEM OPT in eligible fields.

An OPT worker’s current work authorisation would not be cancelled merely because an employer’s PERM filing is suspended. But if the employer is using PERM to begin the worker’s green-card process, the suspension could prevent or delay that step.

This could leave the worker dependent on another immigration route, such as H-1B sponsorship, before the OPT period expires.

Also Read| PERM suspension could trap tech workers in a green card visa cycle

O-1, TN and E-3 workers may also be affected

The same principle applies to workers in other nonimmigrant categories.

An O-1 worker with extraordinary ability, a professional from Canada or Mexico on a TN status, or an Australian professional on an E-3 visa could be affected if the employer is sponsoring that worker through a PERM-based green-card application.

The worker’s visa category is not the main test. The key question is whether the employee’s permanent-residency case depends on the affected employer’s PERM filing.

Who is most vulnerable?

The impact will depend on the stage of the green-card process.

Workers who may face the greatest uncertainty include:

- employees whose employers have not yet filed PERM;

- workers with pending PERM applications;

- employees waiting for PERM approval before the I-140 stage;

- workers nearing the maximum period of their temporary visa; and

- employees who have limited options to change employers.

A worker with an approved I-140 or a long-pending I-485 may have more options than someone who is still waiting for the employer to start PERM.

Under AC21 portability rules, certain employment-based applicants may change jobs if their I-485 application has been pending for at least 180 days and the new job is in the same or a similar occupational classification.

Does the suspension cancel a worker’s visa?

No. A PERM suspension does not automatically cancel an approved H-1B, L-1, O-1, TN, E-3 or F-1 status.

The worker’s ability to remain in the US will continue to depend on the validity of the existing status, the employer’s ability to maintain or extend it and compliance with the relevant immigration rules.

The immediate effect is usually a delay in the green-card process. The longer-term risk is greater for workers who need PERM progress to qualify for a future visa extension or to move to the next stage of permanent residency.

The larger impact

The PERM action could leave some foreign workers dependent on their employers for longer. Changing jobs may require a new employer to restart the green-card process, while workers close to their visa limits may have less time to do so.

The Department of Labor has said its enforcement action is aimed at suspected fraud and misrepresentation in the PERM system. The department describes PERM as a programme intended to ensure that hiring foreign workers does not harm the wages and job opportunities of US workers.