The Department of Labor is drawing renewed scrutiny from migrant workers and their employers as wait times increase between agents’ roles in employment-based visa approval processes.
Employers looking to hire foreign workers must first test the U.S. labor market by advertising with Department of Labor-approved typical wages. Following that recruitment process, you must apply to the DOL for labor certification before submitting a migrant worker petition to the U.S. Citizenship and Immigration Service.
So far, USCIS and the State Department have faced the brunt of criticism for immigration benefit backlogs. But increasing delays in DOL compound the barriers employers already face in attracting and retaining talent.
Employers who sponsor large numbers of similarly situated workers to obtain green cards routinely file general wage claims with the Department of Labor throughout the year, lawyers said, reducing wait times. It avoids major headaches caused by These standard positions can have multiple jobs open at once, so a delay in one application rarely significantly delays other jobs in the pipeline.
But Heather Freya, an immigration attorney at Dickinson-Wright Law Firm, said typically firms occupying fewer or more unique positions, such as smaller employers, are likely to experience the worst impact. said to be expensive.
“In my opinion, one-off positions or smaller companies will be most affected. Sometimes they are short on time,” she said.
Impact on small businesses
The typical wait time for the first step to get an approved prevailing wage from the DOL has jumped from three months to nearly a year for most employers. Wage determinations are based on occupation, field of employment and skill level. However, the specific factors behind the increased latency are unknown.
It takes 16 months or more to secure both general wage determination and full-time work certification. In the fourth quarter of 2022, it reached 226,837, an increase of 114% from the total backlog in the fourth quarter of 2020, according to an analysis of Labor Department data by the Cato Institute.
“This is the reality of the current immigration system,” said Tess Douglas, immigration attorney at DGO Legal LLP.
“It’s really hard for small businesses to try to fill positions,” she said.
A DOL spokesman said the agency had no comment on the backlog.
Adverse outcomes have yet to pile up for applicants, but increased wait times have added uncertainty about whether workers seeking green cards will be able to meet the key milestone of seeking permanent residency. .
Workers on temporary H-1B Special Occupation visas are limited to six years in the United States unless they submit proof of work and begin the green card process. Generally, by submitting your PERM application at least one year before your final year of H-1B eligibility, you can obtain that certification on time and extend your status in the U.S. while your green card application is pending. can.
“Now every day I get calls from clients, mostly beneficiaries.
“Everyone thinks I’m not going to make it. Everyone thinks my PERM won’t be submitted on time.”
Long delays for green card applicants can create problems for both the workers themselves and their employers, especially in certain key industries.
According to Addie Hogan, a founding partner of Corporate Immigration Partners, workers with older children can move out of dependent status, which is limited to children of temporary foreign workers who are unmarried and under the age of 21. You can grow old.
These kinds of results will become more common as the backlog worsens, she said.
“We’re going to see more and more of this in the next year,” Hogan said.
In most cases, companies seeking general wage determination by the DOL employ workers in the United States, usually on H-1B visas. However, the Labor Department’s delay could pose a significant barrier for workers such as nurses who must obtain green cards from abroad because they are not eligible for temporary visas.
Elissa Taub, an immigration attorney at Siskind Susser PC, said other foreign health care workers who want to work in the United States after attending college or university in the United States also face employment gaps if labor certification is not available in time. He said he could face it.
“Hospitals can’t get nurses in the door right away because the DOL is taking so long to issue general wages,” she said.
Labor Secretary Marty Walsh has repeatedly said comprehensive immigration reform is needed to address a bigger threat than inflation: the shortage of workers in the United States. He repeated that call at the World Economic Forum in Davos this week.
At the same time, however, US lawmakers have expressed concern about wait times at his agency.
DOL delays make it difficult for employers to “have confidence that they can get the workers they need.”
Since then, the backlog has only gotten worse.
Taub pointed out that there is no statutory or regulatory time frame for the DOL to issue general wage determinations or work certificates.
And unlike USCIS, the DOL cannot charge fees for applications to accommodate the rise in temporary work visas that companies are pressuring the Biden administration to make available.
“DOL is stuck with the funding Congress gave them,” Taub said.