Let Trump keep looking at H-1Bs; there is a much better option for immigrants

Renata Castro, Esq

Since Trump became president, his presidency has focused obsessively with making it harder – virtually impossible – for immigrants to enter or remain in the USA, either legally, or without status.

One of the biggest sources of Trump’s attack has been the H-1B visa, which allows US employers to hire foreign qualified workers to fill positions in the USA. The visa, which is generally used for 7 years per beneficiary and is, in its majority, subject to a lottery, is the object of desire for many foreigners wishing to work in the USA.

The latest blow to H-1Bs was announced on July 31, 2020, as a cross-agency fraud investigation has been launched by the US government involving both the Department of Labor and Homeland Security, with the objective of sharing data and records on H-1B visa holders .

Sensationalist articles claim that workers in the USA undermine the US job market by offering American companies with cheap labor. That could not be farther from the truth. US employers must comply with wages set by the Department of Labor through a Labor Condition Application, or LCA. LCAs are only issued by the Department of Labor once a Prevailing wage is set. Prevailing wage rates for an H-1B occupancy must be the higher of the actual wage rate (the rate the employer plays to all other individuals with similar experience and qualifications who are performing the same job), or the prevailing wage(a wage that is predominantly paid to workers in the same occupational classification in the area of intended employment at the time the application is filed) .

Even though the H-1B visa is an entryway to a career in the USA, the visa does not guarantee the most coveted status for an immigrant, which is that of a lawful permanent resident.

Professionals aiming to come to the USA who have a job offer from a US-based employer, even if granted an H-1B (or any other visa authorizing extended permanency in the USA) should discuss with the employer a PERM petition.

PERM, or Program Electronic Review Management, is the system used for obtaining labor certifications, which are issued by the department of Labor. The Labor Certification acts as a certificate of need for a US based employer, who tests the market by fulfilling a series of recruitment steps to determine whether there are any able, willing, available and qualified U.S. workers to fill the position offered. It is important to note that the test is not whether there is high unemployment, or workers available, or if the skills required are too specific. If individuals do not respond to the job ad or respond but decide not to accept the conditions of the position, a labor certification can be issued.

Employment-based green cards through PERM applications can be issued in both categories EB-2 or EB-3; and differ from H-1Bs as the beneficiary will receive a green card at the end of the process.

When I discuss immigration options with prospective clients, I always discuss the possibilities for a client to obtain a green card. After a lengthy period in the USA, it is likely that the person and their family will want to remain in the country to which they have contributed their skills, paid taxes, bought homes and built a life. H-1Bs do not create a pathway to a green card, and it is up to the employer to decide to pursue a PERM-based green card for the H-1B visa holder. Current times call for safe measures, and green cards are likely the safest outcome for someone looking to move their family and uproot their careers to the USA. So if you are in the USA on a temporary visa, like an H-1B or F-1(student visa), you should be discussing with your prospective employer the ability to pursue both an H-1B and a Labor Certification for a PERM-based green card application.