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Business Anxiety Rises With Labor Department Green Card Delays

Jan. 20, 2023, 10:30 AM

The Labor Department is attracting new scrutiny from immigrant workers and their employers as wait times grow during the agency’s role in the employment-based visa approval process.

Employers seeking to hire foreign workers must first test the US labor market by advertising with a DOL-approved prevailing wage. Following that recruitment process, they must apply for labor certification from the DOL before submitting an immigrant worker petition with US Citizenship and Immigration Services.

USCIS and the State Department thus far have borne the brunt of criticism for backlogs in obtaining immigration benefits. But mounting delays at the DOL are adding to barriers employers already face in attracting and retaining talent.

Employers that sponsor large numbers of workers in similar positions for green cards have avoided major headaches from wait times because they routinely file prevailing wage requests with DOL throughout the year, attorneys say. Those standard positions allow them to recruit for multiple jobs at once, so one delayed application isn’t likely to significantly hold up hiring with others in the pipeline.

But companies filling fewer or more unique positions—typically smaller employers—are likely to experience the worst effects, said Heather Frayre, an immigration attorney at Dickinson Wright PLLC.

“One-off positions or smaller companies in my opinion are going to be the ones that are most affected. There are cases where we’re running short on time,” she said.

Small Business Impact

The typical wait time for the initial step of getting an approved prevailing wage from the DOL has jumped from three months to nearly a year for most employers. The wage determinations are based on occupation, areas of employment, and skill level. But the specific factors behind the growing wait times are unclear.

Securing both a prevailing wage determination and permanent labor certification takes well over 16 months. That combined backlog reached 226,837 in the fourth quarter of 2022, a 114% jump from the total backlog in the last quarter of 2020, according to a Cato Institute analysis of Labor Department data.

“That’s the reality of our immigration system right now,” said Tess Douglas, an immigration attorney at DGO Legal LLP.

“It’s really hard on small businesses trying to get a position filled,” she said.

A DOL spokesman said the agency didn’t have a comment on the backlogs.

While adverse outcomes haven’t yet started to pile up for applicants, the increased wait times have added uncertainty over whether the workers seeking green cards will be able to hit key milestones in seeking permanent residency.

Workers on temporary H-1B specialty occupation visas are limited to six years in the US unless they start the green card process by submitting a labor certification. Usually, filing a PERM application at least one year before their final year of H-1B eligibility allows them to get that certification on time and extend their status in the US while the green card application is pending.

“Every day right now I get calls from my clients—mainly beneficiaries. They’re getting freaked out,” said Jay Wu, an immigration attorney at Puyang & Wu LLC.

“Everyone thinks they’re not going to make it. Everyone is thinking my PERM will not be filed on time.”

Potential Disruptions

Extended delays for green card seekers will likely add up to problems both for the workers themselves and for their employers, particularly in certain key industries.

Workers with older children can “age out” of dependent status, which is limited to the children of temporary foreign workers who are unmarried and under age 21, said Addie Hogan, founding partner at Corporate Immigration Partners.

Those kinds of outcomes will become more common as the backlogs worsen, she said.

“You’re going to see more and more of this over the next year,” Hogan said.

In most cases, companies seeking a prevailing wage determination from DOL already employ a worker in the US, typically on an H-1B visa. But the Labor Department delays can add significant barriers for workers—such as nurses—who must obtain green cards from abroad because they don’t qualify for temporary visas.

Other foreign health-care workers who seek US employment after attending US colleges and universities also could face a gap in employment if labor certifications aren’t processed in time, said Elissa Taub, an immigration attorney at Siskind Susser PC.

“Hospitals are not able to get nurses in the door quickly enough because it’s taking DOL so long to issue prevailing wages,” she said.

Agency Struggles

Labor Secretary Marty Walsh has said repeatedly that comprehensive immigration reform is needed to address a worker shortage in the US, which he has called a bigger threat than inflation. He reiterated that call at the World Economic Forum in Davos this week.

But at the same time, US lawmakers have raised concerns about wait times at his agency.

Delays at DOL have made it hard for employers “to have the confidence that they will have the workers they need,” Sens. Amy Klobuchar (D-Minn.) and Susan Collins (R-Maine) wrote in a letter to Walsh last year.

Backlogs have only worsened since then.

There are no statutory or regulatory time frames for the DOL to issue prevailing wage determinations or labor certifications, Taub noted.

And unlike the USCIS, the DOL can’t charge fees for applications in order to address a growing caseload of temporary work visas that businesses have pressed the Biden administration to make available.

“DOL is stuck with funding Congress has given them,” Taub said.

To contact the reporter on this story: Andrew Kreighbaum in Washington at akreighbaum@bloombergindustrygroup.com

To contact the editors responsible for this story: Laura D. Francis at lfrancis@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com