The Labor Department is attracting new scrutiny from immigrant workers and their employers as wait times increase for the agency’s role in the employment-based visa approval process.
Employers seeking to hire foreign workers must first test the U.S. labor market by advertising at DOL-approved prevailing wages. After the hiring process, they must apply for labor certification with DOL before submitting an immigrant worker application to USCIS.
So far, USCIS and the State Department have borne the brunt of the backlog in accessing immigration benefits. But DOL delays are mounting, adding to the hurdles employers already face in attracting and retaining talent.
Employers who sponsor large numbers of workers in similar positions to obtain green cards avoid major headaches with waiting times because they routinely file prevailing wage claims with DOL throughout the year, lawyers say. These standard positions allow them to recruit for multiple positions at the same time, so one delayed application is unlikely to significantly hinder the hiring of others.
But Heather Frayre, an immigration attorney at Dickinson Wright PLLC, said companies that fill fewer or more unique positions — typically smaller employers — are likely to be the worst affected.
“In my view, one-off positions or smaller companies will be the most affected. In some cases, we will be behind schedule,” she said.
small business impact
The typical wait time for the initial step of obtaining prevailing wage approval from DOL has jumped from three months to nearly a year for most employers. Wages are determined based on occupation, field of employment and skill level. But the exact factors behind the increase in wait times are unclear.
It will take more than 16 months to secure prevailing wage determination and permanent labor certification. The total backlog in the fourth quarter of 2022 reached 226,837, a 114% increase over the total backlog in the final 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 for small businesses trying to fill job openings,” she said.
A DOL spokesman said the agency does not comment on backlogs.
While adverse outcomes for applicants have not yet started to pile up, the increase in wait times adds to uncertainty over whether workers seeking green cards will be able to meet key milestones in their quest for permanent residence.
Workers on temporary H-1B specialty occupation visas are limited to six years in the United States unless they begin the green card process by filing a labor certification. Typically, filing the PERM application at least one year before the final year of H-1B eligibility allows them to obtain this certification on time and extend their status in the United States while their green card application is pending.
“Every day now I get calls from clients — mostly beneficiaries. They’re terrified,” said Jay Wu, an immigration attorney with Puyang & Wu LLC.
“Everyone thought they weren’t going to make it. Everyone thought my PERM wasn’t going to be filed on time.”
Prolonged delays for green card applicants could create more problems for workers themselves and their employers, especially in certain key industries.
Addie Hogan, founding partner of Corporate Immigration Partners, said workers with older children can “overage” dependent status, which is limited to children of temporary foreign workers who are unmarried and under the age of 21.
That outcome will become more common as the backlog worsens, she said.
“You’re going to see more and more of this over the next year,” Hogan said.
In most cases, companies seeking DOL determination of prevailing wages already employ a worker in the United States, usually on an H-1B visa. But the Labor Department’s delay could add significant hurdles to 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 seeking employment in the U.S. after attending U.S. colleges and universities could also face employment gaps if labor certifications are not processed in a timely manner.
“Hospitals can’t get nurses on the door fast enough because it’s taking so long for DOL to post the going rate,” she said.
Labor Secretary Marty Walsh has repeatedly said sweeping immigration reform is needed to address America’s worker shortage, which he says is a bigger threat than inflation. He reiterated that call this week at the World Economic Forum in Davos.
But at the same time, U.S. lawmakers have raised concerns about wait times at his agency.
DOL delays make it hard for employers to “trust that they’re going to get the workers they need,” Sens.
Since then, the backlog has only worsened.
Taub noted that DOL has no statutory or regulatory time frame for issuing prevailing wage determinations or labor certifications.
Unlike USCIS, DOL cannot charge fees for filings to resolve a growing number of temporary work visa cases that businesses have pressured on the Biden administration to provide.
“DOL is sticking with the money Congress gave them,” Taub said.