Employment Outlook For Immigrant Workers - Not A Pretty Picture
With an avalanche of restrictive and unprecedented processing delays, there could not have been a worse period in the chronicles of employment-based immigration than the summer of 2005. The government might as well roll out the unwelcome mat for foreign-born employees! One must admire the fortitude of both the alien worker and the employer sponsor as they navigate through the restrictive and cumbersome mazes of regulations and agency obstacles that lie in their path. It is a wonder that the best and the brightest folks don't give up on the U.S. and look for employment in Canada and European countries that covet their talent. This article will summarize the parade of horribles that plague foreign nationals in their attempts to gain permanent residence and contribute their education and skills to the betterment of U.S. industries.
The H-1B Numbers Game - Limited Numbers, Limited Window of Opportunity
Only 65,000 new H-1B petitions, plus an additional 20,000 for individuals with a master's or higher degree from a U.S. university, can be approved every year starting on the first of October. Last year processing stopped on October 2, 2004, the second day of the fiscal year, when it was announced that the USCIS reached the cap for the entire year. This fiscal year the H-1 cap was reached on August 10, 2005, six weeks before the start of the fiscal year. Employers now have to wait for a fresh supply of new H-1 numbers which will not be released until October 1, 2006. Exceptions exist for current H-1B holders transferring to a new employer, H-1B extensions, and other opportunities exist for Australian, Singaporean, Chileans, Canadian and Mexican professional workers.
PERM: The New, Fast Track On-Line Labor Certification Application Is Not So Fast
After many years and many millions spent in re-engineering studies regarding the streamlining of the labor certification application, which is the major vehicle for securing the "green card" through employment, the Department of Labor (DOL) published the Program Electronic Review Management (PERM) regulations on December 27, 2004. This is an attestation-based program where random and targeted audits are conducted to ensure full compliance. DOL commenced on-line application filing on March 28, 2005. PERM promised to reduce the current three to five year processing times.
Thousands of PERM's early users were greeted with inexplicable denials initially blamed on user error but months later acknowledged by DOL to be the result of faulty program logic. Program glitches are slowly being corrected, but good customer service and clear regulatory guidance is sorely lacking. Secrecy shrouds the program as DOL fears that revealing audit triggers and guidance on how to complete a less than user-friendly, highly unintuitive form might lead to program abuses with attempts to trump the system to get a quick approval. DOL's prediction of four to six weeks is now reaching four to five months and growing. The clear winners are foreign born professors at American universities whose applications are processed often in less than one week.
Labor Certification Backlog Reduction Efforts Fail
Prior to unveiling the new PERM program, in October 2004, DOL started closing many of its state and federal labor certification offices and laying off seasoned staff throughout the U.S. Pending labor certifications were sent to Dallas or Philadelphia. The goal was to streamline and consolidate its resources, and clear up its tremendous backlogs. The new centers, called the Backlog Elimination Centers (BECs) have now become the Backlog "Warehouse" Centers as over 345,000 applications were boxed and shipped and, almost one year later, over 100,000 have not even been logged in. Only a few California cases, transferred back in October 2004 have been approved, and for many, no acknowledgment has been received by the employer as to which facility has its case. Many of these applications have been pending since 2001. Government processing timetables are not available.
Permanent Resident Issuance Halted due to Visa Unavailability and Background Security Clearance Delays
"It ain't over 'til it's over," said Yogi Berra. Once the first stage labor certification is approved by DOL, there is a second and third step with Immigration. Only at the third stage does the applicant and all family members, single and under 21 years of age, get work permits and a green card. One cannot advance to the third stage if green card allocations are exhausted - which started occurring in June 2005. This condition will reach tragic proportions in October 2005 as the Department of State Visa Bulletin announces that employment based numbers will retrogress back to 2000 for some foreign nationals. Only those with "priority dates," i.e. filing dates before the cut off date, will move into stage three and be processed for a green card. All nationalities will be impacted but particularly nationals from Mexico, India, China, and the Philippines. (See http://travel.state.gov/visa/frvi/bulletin/bulletin). Unfortunately, even applicants with available priority dates often are thwarted in promptly securing their green card due to extremely lengthy background security checks conducted by the FBI and the Department of Homeland Security.
In addition to family member inability to get work permits, or fear that the eldest child might turn 21 years and be unable to get a green card, the employee cannot be promoted or move to another geographic site, or firmly establish roots and participate fully in American society. Even if the new PERM application gets approved expeditiously, the foreign worker will be "all dressed up with no place to go" because green card numbers have retrogressed for some nationalities. Filing as early as possible is critical.
In conclusion, employer advocacy and congressional intervention is needed to address Department of Labor's backlog reduction efforts and to make its new PERM system more transparent for the users. Increased allocation of H-1B numbers for professional workers and an increase in green card allocation for all foreign nationals, regardless of country of nationality, is essential to both our economic development and our nation's ability to compete in a global environment.
Josie Gonzalez, Esq. is the managing attorney of Gonzalez & Harris, a Los Angeles based immigration law firm that represents employers in all aspects of immigration law. She has testified twice in Washington, D.C. regarding the impact of U.S. immigration laws on the business community, and is a frequent commentator on agency regulatory activities. She served for nearly ten years on AILA's Board of Governors; has contributed as Chair, Co-Chair & member of various national liaison committees; has authored numerous articles for legal and trade journals; and served as Editor-in Chief for the David Stanton Manual on Labor Certification (1998). In 1999, she was recognized by AILA for "Excellence in Advancing the Practice of Immigration Law". Ms. Gonzalez is a frequent guest speaker to many trade and business organizations including PIHRA, the California Restaurant Association, the Employers Group, and the Employer Advisory Council. Ms. Gonzalez has been selected by her peers for inclusion in the inaugural issue of Southern California Super Lawyers®, and for over 10 years in The Best Lawyers in America.
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