The Department of Labor is drawing new attention from immigrant workers and their employers as wait times grow during the agency’s role in the employment visa approval process.
Employers looking to hire foreign workers must first test the U.S. labor market by advertising with a DOL-approved prevailing wage. After that employment process, they must apply for a labor certification from the DOL before filing an immigrant worker petition with USCIS.
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 add 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, attorneys say. Those standard positions allow them to hire for multiple jobs at once, so one delayed application is unlikely to significantly hold back hiring with others in the pipeline.
But companies that fill fewer or more unique jobs — typically smaller employers — are likely to experience the worst effects, said Heather Frayre, an immigration attorney at Dickinson Wright PLLC.
“In my opinion, one-off positions or smaller companies 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 an approved prevailing wage from the DOL has jumped from three months to nearly a year for most employers. Salaries are determined based on occupation, field of employment and skill level. But the specific factors behind the rising wait times are not clear.
The provision of prevailing wage determination and permanent work certification takes more than 16 months. That combined backlog reached 226,837 in the fourth quarter of 2022, a 114% jump from 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 get a job,” she said.
A DOL spokesman said the agency had no comment on the backlog.
Although adverse outcomes have not yet begun to pile up for applicants, extended 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 US unless they begin the green card process by submitting a labor certification. Typically, applying for PERM at least one year before the final year of H-1B eligibility allows them to obtain that certification in time and extend their status in the US while their green card application is pending.
“Right now, I get calls every day from my clients — mostly users. They start freaking out,” said Jay Wu, an immigration attorney at Puyang & Wu LLC.
“Everyone thinks it won’t work. Everyone thinks my PERM won’t be filed on time.”
Longer delays for green card applicants are likely to add to problems for both the workers themselves and their employers, especially in certain key industries.
Workers with older children can “age out” of dependent status, which is limited to unmarried children of temporary foreign workers under the age of 21, said Addie Hogan, a founding director at Corporate Immigration Partners.
Such outcomes will become more common as backlogs increase, 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 can 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 workers seeking work in the U.S. after attending American colleges and universities could also face a gap in employment if work certifications are not processed on time, said Elissa Taub, an immigration attorney at Siskind Susser PC.
“Hospitals can’t get nurses 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 U.S. labor shortage, which he has called a bigger threat than inflation. He repeated that call at the World Economic Forum in Davos this week.
But at the same time, US lawmakers have expressed concern about wait times at his agency.
DOL delays have made it difficult for employers “to have confidence that they will have the workers they need,” Sens.
The backlogs have only gotten worse since then.
There are no statutory or regulatory timelines for the DOL to issue prevailing wage determinations or labor certifications, Taub noted.
And unlike USCIS, the DOL cannot charge application fees to handle the growing backlog of temporary work visas that companies have forced the Biden administration to make available.
“The DOL is stuck with the funding that Congress gave them,” Taub said.