So, When Does the American Worker Get First Consideration? Inside the Deceptive F-1/OPT, H-1B and PERM Pathways
For four articles, I followed the student through the community-college door. Could we bring them back? Could they afford to stay? Were we training them for jobs employers actually need? But eventually students graduate. They have the diploma and the training. Now how do they get jobs?
That question sent me somewhere I did not expect to go — into the maze of F-1 student visas, Optional Practical Training, H-1B temporary workers and eventually permanent employment-based immigration. And almost immediately, I discovered something I had not fully understood:
There is no single rule requiring an employer to look for an “American Worker First” at every step of those pathways.
The answer changes depending upon where the foreign worker is in the immigration system. For most H-1B employers, for example, federal law does not require recruitment of U.S. workers before seeking an H-1B worker. That additional recruitment obligation generally applies to H-1B-dependent employers and certain prior willful violators.
Later, however, when many employment-based immigrants seek permanent residence through the PERM process, the rules change substantially. The Department of Labor generally must certify that there are not sufficient U.S. workers who are able, willing, qualified and available for the job and that hiring the foreign worker will not adversely affect comparable U.S. wages and working conditions. So, when, exactly, do Americans get first consideration?.. To answer that, we have to follow the foreign worker through the system one step at a time.
FIRST, WHAT DOES “TEMPORARY” REALLY MEAN?
That word stopped me. I had always understood a temporary visa to mean exactly what it sounds like: someone comes to the United States for a limited purpose, remains here for a limited period of time, and then leaves.
That is true in some immigration categories. But it is not quite that simple for the pathways we are examining. In fact, Temporary DOESN’T MEAN Temporary! An international student may enter the United States on F-1 status to attend school. Afterward, that student may qualify for Optional Practical Training, or OPT — temporary employment directly related to the student’s major field of study. Some graduates in qualifying science, technology, engineering and mathematics fields may receive an additional 24-month STEM OPT extension.
So far, that still sounds temporary. But the next step can change the picture. An employer may petition for that graduate to move into H-1B status, which is another nonimmigrant — technically temporary — category for specialty-occupation workers. H-1B status is generally granted for up to three years initially and ordinarily may continue for as long as six years. Certain workers pursuing employment-based permanent residence can remain in H-1B status even longer under statutory exceptions.
And this was the part I had not fully understood: H-1B is temporary status, but the worker is legally permitted to intend to become a permanent resident. Unlike many other nonimmigrant applicants, H-1B applicants are specifically excluded from the usual requirement to overcome a presumption that they intend to immigrate permanently. In immigration terminology, this is commonly called dual intent.
In other words: Temporary does not necessarily mean “temporary person.” It means temporary immigration status. The person may later qualify for another status — including lawful permanent residence — if he or she satisfies the requirements of that separate process.
And that distinction matters…
Johnny may graduate from an American school and enter the labor market looking for his first career opportunity. Standing beside him may be another graduate who originally came to America as an international student, worked through OPT, later obtained H-1B status and may eventually be sponsored for permanent residence. Neither person has done anything improper. They are simply operating under two very different sets of rules. And that brought me to the question I really wanted answered:
AT WHAT POINT IN THAT PROCESS DOES FEDERAL LAW REQUIRE AN EMPLOYER TO ASK WHETHER A QUALIFIED U.S. WORKER IS AVAILABLE FIRST?
That is where things get interesting.
SO, WHEN DOES JOHNNY GET FIRST CONSIDERATION?
For the ordinary F-1 Optional Practical Training program, a Dept. of Homeland Security (DHS) created program, the answer is generally NO — not in the sense of a formal labor-market test requiring the employer to recruit an American worker first.
OPT currently allows an F-1 student to work in employment directly related to his or her field of study. Post-completion OPT can generally last up to 12 months. A qualifying STEM graduate may later receive a 24-month extension.
But the rules change somewhat when we get to STEM OPT. There, the employer must complete a formal training plan and certify that the foreign student will not replace a U.S. worker. The employer must also provide duties, hours and compensation that are commensurate with those offered to similarly situated U.S. workers. That sounds like protection for the American worker.
And it is. But notice what it does not necessarily require:
It does not create the same kind of labor-market test we will later see under PERM, where the employer must actually recruit U.S. workers and demonstrate that no able, willing, qualified and available U.S. worker can fill the permanent position.
So, Johnny may graduate, apply for a job and find himself competing with an international graduate who is legally authorized to work under OPT. At that point, the question is not necessarily: “Was there an American available to fill this job?”
It may simply be: “Is this foreign graduate legally authorized to take this job under the terms of OPT?”
That distinction matters…
The STEM rules add protections against replacement and unequal treatment. But they still are not the same thing as giving Johnny an automatic first opportunity at the job. And that leads us to the next step in the pathway: H-1B.
Because once an employer decides that foreign graduate is someone it wants to keep, the relationship may move from student practical training into a completely different temporary-worker program. And that is where the American-worker question becomes even more interesting.
NEXT STOP: H-1B — DOES JOHNNY GET FIRST CONSIDERATION NOW?
By this point, I expected the answer to change.
H-1B is no longer student practical training. It is a temporary employment category for specialty occupations. So, I assumed that before an employer could bring in an H-1B worker, the employer would have to show that a qualified U.S. worker was not available.
For most H-1B employers, that is not what federal law requires.
The Department of Labor states that an H-1B employer generally is not required to recruit U.S. workers first. That additional recruitment requirement applies principally when the employer is classified as H-1B-dependent or has previously been found to be a willful violator of H-1B requirements.
Those employers must take good-faith steps to recruit U.S. workers. And if a U.S. worker applies who is equally or better qualified than the H-1B applicant, that worker must be offered the job.
But for most other H-1B employers, there is no comparable requirement to first search the U.S. labor market and determine whether Johnny—or another qualified U.S. worker — is available.
That does not mean the employer is being told to choose the foreign worker over Johnny. It means something much simpler — and, to me, more surprising:
The law generally does not require that particular question to be asked first.
So now Johnny has the diploma. He has the training. He may even possess exactly the skills the employer says it needs. But at this stage, the federal system still does not generally require most H-1B employers to prove that no qualified U.S. worker is available before seeking an H-1B worker.
And that raises the question I kept coming back to: SO, WHEN DOES JOHNNY FINALLY GET THAT PROTECTION?
This is where the rules change. When an employer seeks to sponsor many foreign workers for permanent employment-based residence, particularly through the EB-2 or EB-3 categories, the employer generally must first go through the Department of Labor’s Permanent Labor Certification process — PERM. And PERM asks a question we have not consistently seen at the earlier stages: Are there U.S. workers who are able, willing, qualified and available to take this job?
Before filing, the employer generally must obtain a prevailing-wage determination and conduct required recruitment for the permanent position. The Department of Labor may certify the application only if it determines that sufficient qualified U.S. workers are not available and that employing the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.
In other words, now the American-worker question becomes part of the formal process. That does not mean Johnny automatically gets the job merely because he is an American citizen. The law speaks more broadly about U.S. workers, and the employer still determines the legitimate minimum qualifications for the position and conducts the recruitment.
But if an able, willing, qualified and available U.S. worker exists for the position, the employer cannot simply disregard that fact and obtain PERM certification as though no such worker existed.
And that is what made the entire pathway finally click for me.
At the OPT stage, there generally is no full labor-market test.
At the H-1B stage, most employers generally are not required to recruit U.S. workers first.
But when many of those same workers seek permanent residence through PERM, the government finally requires the employer to test the U.S. labor market. So, I found myself asking an obvious question:
WHY DOES THAT TEST COME SO LATE?
By then, the foreign worker may already have studied here, worked here through OPT, moved into H-1B status and developed years of experience with the very employer now sponsoring permanent residence. That does not mean anything improper has occurred. But it does raise the central policy question of this article:
If determining whether a qualified U.S. worker is available matters only before permanent residence is granted, should a comparable question be asked earlier in the employment pathway?
There are exceptions. Certain employment-based categories, including qualifying National Interest Waiver cases, do not require PERM at all because Congress authorized USCIS to waive the job-offer (and therefore labor-certification) requirement when the statutory standards are met.
But those exceptions do not change what we have discovered about the basic pathway.
Johnny gets one of the strongest formal labor-market protections near the end of the process — not necessarily at the moment he first begins competing for the job.
SO WHY WAS THE SYSTEM BUILT THIS WAY?
There isn’t one. And it appears most of the public have been deceived, like Johnny, into believing ALL these programs are TEMPORARY and based on NEED!
OPT, H-1B and permanent employment-based immigration were created for different legal purposes and therefore operate under different rules. OPT is practical training connected to F-1 student status. H-1B is a temporary specialty-occupation program. PERM, however, is part of the process through which many foreign workers seek permanent employment-based residence.
And permanence changes the legal test. For PERM, federal law specifically requires the Department of Labor to determine that there are not sufficient U.S. workers who are able, willing, qualified and available for the job, and that employing the foreign worker will not adversely affect similarly employed U.S. workers.
That explains why the rules are different. But it does not completely answer the question that now bothers me.
If someone can come here as a student, work through OPT, move into H-1B status, remain employed for years and eventually pursue permanent residence, does it still make sense for one of the strongest tests for the availability of U.S. workers to occur so late in that pathway?
That is not a question about whether the foreign worker has done anything wrong. It is a question about how we designed the system, and WHY it’s rigged against Citizens?
AND WHAT HAPPENED TO JOHNNY?
Remember Johnny? We told him to get an education. We told him to learn the skills employers need. We told him that education was the pathway from opportunity to employment. So, Johnny did exactly that.
What I did not understand until I began following this immigration pathway was that the rules governing who gets considered first can change depending upon which stage of the system another worker happens to be in; and are stacked against the Johnnys. OPT has one set of protections. H-1B has another. PERM finally brings a much stronger labor-market test into the picture.
That does not mean Johnny is entitled to every job as a preferred citizen. And it does not mean the foreign graduate or worker standing beside him has done anything improper. But Johnny ought to know the rules of the competition he has entered. And perhaps that is the question we should have been asking all along:
If we are going to spend years telling American students to prepare themselves for the jobs our economy needs, at what point should our immigration laws mandate that those trained American workers already standing at the door come FIRST?
Johnny got the diploma. Now we finally understand why the question, “Who gets the job?” is not nearly as simple as it sounds.
by Linda Brickman
©2026 Linda Brickman All Rights Reserved.
