The Labor Department is attracting 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 should first test the US labor market by advertising with DOL-approved prevailing wages. Following that hiring 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 have thus far borne the brunt of criticism for the backlog in getting immigration benefits. But mounting delays at the DOL are exacerbating the obstacles employers already face in attracting and retaining talent.
Lawyers say employers who sponsor large numbers of workers in similar positions for green cards avoid major headaches from wait times, because they routinely file prorated wage requests with the DOL. Those standard positions allow them to recruit for multiple jobs at once, so a delayed application is unlikely to get hired 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 Fryre, an immigration attorney at Dickinson Wright PLLC.
“In my opinion one-off situations or smaller companies are going to be affected the most. There are cases where we have time constraints,” she said.
small business impact
The typical wait time for the initial stage of receiving DOL-approved prevailing wages has increased from three months to nearly a year for most employers. Salary determination is based on occupation, areas of employment and skill level. But the specific factors behind the increased wait times are unclear.
It takes more than 16 months to secure both a prevailing wage determination and a permanent labor certification. The 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 a position for small businesses trying to fill,” she said.
A spokeswoman for the DOL said the agency had no comment on the backlog.
While the adverse consequences for applicants have not yet begun, the increased wait times have raised uncertainty over whether workers seeking green cards will be able to reach a key milestone in seeking permanent residency.
Workers on temporary H-1B specialty occupation visas are limited to six years in the US until they begin the green card process by submitting a labor certification. Typically, filing a PERM application at least one year prior to their final year of H-1B eligibility allows them to obtain timely certification and extend their status in the US while their green card application is pending.
“Every day right now I get calls from my clients — mainly from beneficiaries. They’re going crazy,” said Jay Wu, an immigration attorney at Puyang & Wu LLC.
“Everyone thinks they’re not going to make it. Everyone’s thinking my perm won’t be filed on time.
Extended delays for green card seekers will increase problems both for workers and for their employers, especially in some key industries.
Eddie Hogan, founding partner of Corporate Immigration Partners, said workers with older children could be “aged out” from dependent status, which is limited to children of temporary foreign workers who are unmarried and under 21.
He added that as the backlog worsens, the results will become more general.
Hogan said, “You’re going to see a lot more of this next year.”
In most cases, companies seeking prevailing wage fixation from the DOL already employ a worker in the US, usually on an H-1B visa. But the Labor Department’s delay could add significant hurdles for workers — such as nurses — who must obtain green cards from abroad because they are not eligible for temporary visas.
Alyssa Taub, an immigration attorney at Siskind Susser PC, said other foreign health care workers seeking US employment after attending US colleges and universities may also face an employment gap.
“Hospitals haven’t been able to get nurses in the door quickly because it’s taking so long for the DOL to issue prevailing wages,” she said.
Labor Secretary Marty Walsh has repeatedly said comprehensive immigration reform is needed to address the labor shortage in the US, which he has called a bigger threat than inflation. He reiterated that call this week at the World Economic Forum in Davos.
But at the same time, US lawmakers have raised concerns about wait times at his agency.
The DOL delay has made it hard for employers “to have confidence that they will have the workers they need,” Sens.
The backlog has only gotten worse since then.
Taub said there is no statutory or regulatory time limit for the DOL to issue a prevailing wage determination or labor certificate.
And unlike USCIS, the DOL cannot charge a fee for applications to address the growing cases of temporary work visas, which businesses have pressured the Biden administration to make available.
“DOL is stuck with the funding Congress has given them,” Taub said.