The Labor Department is drawing new scrutiny from immigrant workers and their employers as wait times increase over the agency’s role in the employment-based visa approval process.
Employers looking to hire foreign workers must first test the US labor market by advertising with a DOL-approved prevailing wage. After this recruitment process, they must apply for labor certification from the DOL before submitting an immigrant worker petition to US Citizenship and Immigration Services.
USCIS and the State Department have so far borne the brunt of criticism for delays in obtaining immigration benefits. But mounting delays at the DOL are adding to the hurdles employers already face in attracting and retaining talent.
Employers who sponsor large numbers of workers in similar positions for green cards have avoided major wait-time headaches because they routinely file prevailing wage claims with the DOL throughout the year, advocates say. These standard positions allow them to recruit for many jobs at once, so a late application is not likely to significantly hinder employment with others in the pipeline.
But companies that fill 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 will be the ones that will be affected the most. There are times when we run out of time,” she said.
Small business impact
The typical wait time for the initial step of getting a DOL-approved prevailing wage has increased from three months to nearly a year for most employers. Salary determination is based on occupation, fields of employment and skill level. But the specific factors behind the increase in wait times are unclear.
Securing a prevailing wage determination and permanent labor certification takes more than 16 months. That combined backlog reached 226,837 in the fourth quarter of 2022, a 114% increase from the total backlog in the final quarter of 2020, according to a Cato Institute analysis of Labor Department data.
“This is 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 to try to fill a position,” she said.
A DOL spokesman said the agency did not have a comment on the backlog of filings.
While the adverse results have not yet begun to pile up for applicants, increased wait times have added to uncertainty about whether workers seeking green cards will be able to reach key milestones in seeking permanent residency.
Workers on temporary H-1B specialty occupation visas are limited to six years in the U.S. unless they begin the green card process by submitting a labor certification. Usually, filing a PERM application at least one year before the final year of H-1B eligibility allows them to receive that certification in time and extend their US status while the green card application is pending.
“Every day at the moment I get calls from my clients – mostly beneficiaries. They’re freaking out,” said Jay Wu, an immigration attorney at Puyang & Wu LLC.
“Everyone thinks they won’t make it. Everyone thinks my PERM will not be submitted on time.”
Extended delays for green card applicants are likely to add to problems for both the workers themselves and their employers, especially in some key industries.
Workers with older children may be “denied” of dependent status, which is limited to children of temporary foreign workers who are unmarried and under the age of 21, said Addie Hogan, founding partner at Corporate Immigration Partners.
These types of outcomes will become more common as remaining gaps 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 the DOL already employ a worker in the US, usually on an H-1B visa. But the Labor Department’s delays could add significant hurdles for workers — like nurses — who must obtain green cards from abroad because they don’t qualify for temporary visas.
Other foreign health care workers seeking employment in the U.S. after attending American colleges and universities may also face a gap in employment if labor certifications are not processed in time, said Elissa Taub, an immigration attorney at Siskind Susser PC.
“Hospitals are not able to get nurses in the door fast enough because the DOL is taking so long to issue prevailing wages,” she said.
Labor Secretary Marty Walsh has repeatedly said comprehensive immigration reform is needed to address the US labor shortage, which he has called a bigger threat than inflation. He repeated this 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 the DOL have made it difficult for employers to “have confidence that they will have the workers they need,” Sens.
The remaining statements have only gotten worse 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 USCIS, the DOL cannot impose application fees in order to address a growing backlog of temporary work visas that businesses have been pressing the Biden administration to make available.
“The DOL is stuck with the funding that Congress has given them,” Taub said.