Government shutdown halts visa, permanent resident approvals

By Andrew Rice
The Center Square

As the federal government shutdown continues with no clear end in sight, federal agencies that process legal immigrant petition documents have been completely halted, leaving immigrant workers in limbo.

U.S. Citizenship and Immigration Services is a fee funded agency that allows it to accept foreign worker visa applications during federal funding lapses. However, the U.S. Department of Labor is responsible for certifying necessary documents that immigrants or employers use to obtain work visas or permanent resident status.

Employers must file labor condition applications to hire workers on H-1B visas, promising that hiring the foreign worker will not negatively affect American workers’ wages or conditions. These applications have to be approved by the Department of Labor before an H-1B petition can be filed.

Anna Gorisch, founder and managing partner of Kendall Immigration Law, said the shutdown is delaying visa applications for her clients.

“It’s becoming a problem with the government closure because there are some cases that can still go forward fine but anything that involves Department of Labor grounds to a halt,” Gorisch told The Center Square.

Non-citizens on work visas or seeking permanent legal status in the United States are also affected by the ongoing shutdown. The Program Electronic Review Management, or PERM, is a labor certification that allows employers to sponsor immigrant workers for green cards in the United States.

PERM applications are different from H-1B visas because they provide permanent employment and residency in the United States. H-1B visas are available for three years but can be renewed once more for a total of six years.

PERM processes can take as much as two years to complete with the Department of Labor. Employers who go through the process will place the foreign worker in various categories of employment-based visas.

The PERM process requires employers to go through a prevailing wage determination process that calculates how much an employee should be paid based on the market rate for a certain job. These calculations must be done by the employer and approved by the Department of Labor.

“It takes nine months to a year for them to come back and tell us what the wage is when we pretty much already know,” Gorisch said. “We do the same math, all of it.”

Once approved, the prevailing wage determination process is temporary and can expire after a certain period of time. The expiration date can come anywhere between nine months and a year.

Gorisch said she has been frustrated by the government shutdown’s effect on her clients. She recounted a recent case where a client was promoted shortly after she submitted their original prevailing wage request, requiring Gorisch to submit yet another request while the government is shut down.

“I can’t do anything because [the] Department of Labor is closed,” Gorisch told The Center Square. “With the government shutdown, the delays that are already so bad will just be much worse.”

Legal immigration advocates, like Gorisch, said the government shutdown is an opportunity to push for parts of the immigration process to be reformed.

She said centralizing most immigration requirements in one department that is funded through appropriations has a negative effect on the immigration process as a whole.

“I would take [the Department of Labor] out entirely,” Gorisch said. “I don’t think they do a good job of policing wages, I don’t think they do a good job of ensuring that U.S. workers are protected. I think most of it is an expensive racket.”

She pointed to issues with the Department of Labor’s control over the H-2A agricultural worker visa program.

The Department of Labor certifies wage rates for temporary immigrant agricultural workers based on the Adverse Effect Wage Rate, which calculates wages based on data from the U.S. Department of Agriculture.

Gorisch said this calculation often leads to wages that are too high, since agricultural employers are also required to house immigrant workers. Farms then tend to hire illegal immigrant workers so they are not required to pay high rates mandated by the government.

According to data from the U.S. Department of Agriculture, 42% of farmworkers in the United States do not have U.S. work authorization

“That’s why you have so many farms that run with illegal migrants, because they can’t afford to do it legally,” Gorisch said.

The Trump administration recently proposed a rule that would change how wages are calculated for workers on H-2A visas. The rule would base wage calculations on state-level Bureau of Labor Statistics data.

The administration argues this change would help stabilize wage rates in the H-2A visa process and make them more realistic for different farms across the country, since it is based on local data.

“This continuity is essential for minimizing the likelihood of shortages, price volatility, and disruptions throughout the supply chain, which can affect customers and businesses alike,” the department wrote in its rule.

Even still, Gorisch said the trend of recent government shutdowns has complicated an already difficult immigration system. She said she wants to see more reform from the federal bureaucracy.

“There has got to be a better way to do this because DOL is just giant bureaucracy with lots of red tape and it’s just a miserable system to deal with,” Gorisch said.