Dora Najm, LL.M. Candidate, 2025

In recent years, technology giants like Apple, Google, and Amazon have heavily relied on foreign talent to fill crucial roles in their companies. This dependence is largely facilitated by employment visas for foreign workers, such as the H-1B and L-1 visas. As of 2019, immigrants made up almost one-fourth, or 23.1 percent, of all STEM workers in the entire country. For instance, Amazon alone hired almost 6,400 new H-1B workers in 2022 and hired the most new H-1B workers out of any employer in 2021. Similarly, Google and Meta (the latter formerly named Facebook) have long been among the leading H-1B employers, collectively hiring over 3,100 new H-1B workers in 2022. Meta employs so many H-1B workers that for years it has declared itself an “H-1B dependent” firm in government filings because more than 15% of Meta’s total U.S. workforce consists of H-1B workers.  This reliance on international talent demonstrates the necessity of immigration for innovation and competitiveness within the tech industry. However, it also introduces significant legal and ethical challenges.

A flurry of high-profile lawsuits in recent years illustrate the delicate balance Big Tech companies must strike between leveraging international expertise and adhering to stringent immigration laws. One notable case is Apple’s settlement with the U.S. Department of Justice (DOJ) over discriminatory recruitment practices related to PERM (Program Electronic Review Management) positions. The PERM process requires employers to demonstrate that no qualified U.S. workers are available for a job before permanently hiring a foreign worker. The DOJ found that Apple’s recruitment practices for PERM positions disadvantaged U.S. citizens by not posting jobs on its external website, requiring paper applications, and disregarding electronic applications. This allowed Apple to more easily demonstrate a lack of qualified U.S. applicants, enabling the company to permanently hire foreign workers for these positions instead. As a result, Apple agreed to pay up to $25 million in back pay and civil penalties in 2023. This case has prompted increased scrutiny of hiring practices across the tech industry and could lead to stricter enforcement of existing immigration laws or new regulations altogether.

Similarly, in 2021, Facebook (now Meta) settled with the DOJ for $14.25 million over allegations that it unfairly favored temporary visa workers for PERM positions over U.S. workers. These cases highlight how Big Tech’s corporate immigration practices can run afoul of U.S. labor laws, particularly those designed to protect domestic workers from unfair competition. Furthermore, these practices led to fewer applications from U.S. workers, violating 8 U.S.C. § 1324b, which prohibits discrimination based on citizenship or national origin.

To fully grasp the legal challenges surrounding Big Tech’s corporate immigration practices, it’s essential to understand key statutes like 8 U.S.C. § 1324b, which address unfair immigration-related employment practices. This statute prohibits employers from discriminating against individuals based on their national origin or citizenship status during hiring or recruitment processes. Additionally, 8 U.S.C. § 1153 outlines the allocation of immigrant visas through employment-based preferences. The PERM process falls under this statute’s framework, requiring employers to test the labor market before sponsoring foreign workers for green cards. Failure to comply with these legal requirements can result in significant penalties, as seen in both the Apple and Facebook cases.

During 2022 and early 2023, major tech firms hired over 34,000 new H-1B workers while laying off at least 85,000 employees. For instance, together, Google and Meta laid off 33,000 employees, almost 11 times the number of new H-1B workers they hired in 2022. This discrepancy raises questions about whether these visas are genuinely being used to fill gaps in skilled labor, or if companies are using them as a cost-cutting measure by hiring cheaper foreign labor instead of domestic workers.

In addition to laying off foreign workers, some tech companies have slowed down or frozen their PERM processes due to fears of lawsuits like those faced by Apple and Facebook.  After Apple’s legal troubles with PERM-related discrimination claims, many companies have become wary of continuing with this process, since they are unable to meet the labor certification requirements. These requirements mandate employers to demonstrate that they cannot find qualified U.S. workers for the position and that hiring a foreign worker will not adversely affect wages or working conditions of similarly employed U.S. workers. Employers must conduct a h labor market test, obtain a prevailing wage determination, and provide detailed documentation proving they have made genuine efforts to recruit American workers before sponsoring a foreign employee for permanent residency.

Instead, some companies have turned to alternative immigration pathways like the National Interest Waiver (NIW), which allows companies to avoid direct involvement in potentially risky sponsorship processes and bypass the labor certification requirements, while still accessing global talent. This shift towards NIW is evidenced by the dramatic increase in STEM-related NIW receipts, which surged from 6,500 cases in 2018 to 20,950 cases in 2023, representing a 222.3% increase.

Critics argue that part of the reason Big Tech relies so heavily on foreign workers is due to shortcomings in the U.S. educational system. There is a shortage of STEM graduates from American universities who can meet the demands of these high-tech roles. In contrast, countries like China produce large numbers of highly educated professionals who are disciplined and hardworking, qualities that tech giants value highly. Without access to global talent through programs like H-1B and L-1 visas, many fear that American tech companies would struggle to maintain their competitive edge in research and development. However, anti-immigration advocates have been out in full force, using this as a talking point for deeply misguided commentary and analysis that roughly translates to “immigrants are taking all our jobs.” EPI has mentioned several reasons for why this misguided commentary is false. One reason  is that the unemployment rate for U.S.-born workers averaged 3.6% in 2023, the lowest rate on record. Obviously, immigration is not causing high unemployment among U.S.-born workers.

As we look toward future changes in immigration policy under Donald Trump’s administration, it’s important to consider how past policies might inform what’s ahead. Trump has historically favored stricter immigration controls, which could further complicate visa processes for both employers and employees in tech. If immigration policies become more restrictive again, it could exacerbate existing challenges for foreign workers trying to navigate layoffs while on temporary visas.

In conclusion, while international talent is indispensable for innovation and competitiveness in Big Tech, current corporate immigration practices present significant legal and ethical challenges, both for companies and their employees. Therefore, companies must find a balanced approach that protects the interests of international talent while adhering to U.S. labor laws designed to safeguard domestic employment opportunities.