Immigration: Addressing America’s Labor Shortages

by David Harrington

Much discussion is made regarding the United States’ immigration policies. However, much of the attention tends to be on our Southern borders. Not so much in the spotlight but still vastly important is the field of business immigration. Balancing the need to bring talented workers into the United States with the need to support our own workers is the centerpiece of this field. In fact, a would-be employer must demonstrate to the satisfaction of the Department of Labor that no American worker can fill the job needed at the prevailing wage. This process is called Labor Certification and can take over a year in some instances from start to finish. The process also calls for a thirty-day intensive recruitment period, including advertising and job postings that contain specific language. Most business owners may smirk at this – these days, job postings may hang for months or more without adequate labor to meet the demand.

So how would an employer find talented labor suitable for the immediate needs of a field facing a shortage? Congress contemplated this with the creation of a National Interest Waiver system. For members of professions holding advanced degrees or their equivalents, a National Interest Waiver can help bypass the need for the arduous process of Labor Certification. As is the case with many laws passed by congress, some terms are vague and must be left up to judicial interpretation. National interest is one of those terms. However, in 2016, the U.S. Citizenship and Immigration Services (USCIS) set a standard for the term in an Administrative Appeals Office decision, Matter of Dhanasar. That decision laid the groundwork for modern National Interest Waiver adjudications by creating a three-pronged test.

First, the foreign national’s proposed endeavor has both substantial merit and national importance. A range of meritorious endeavors, from technology to science, culture, or health-related fields, may be approved. Second, an adjudicator must find that the foreign national is well positioned to advance such a proposed endeavor. Here the merits of the individual are considered. And finally, on the balance, it would be beneficial to the United States to waive the labor certification or job offer requirements. This is a discretionary finding relating to labor markets, job creation, or the desirability of the fields like STEM work.

The final prong also touches on an interesting and sometimes under-utilized provision within the law. That is the ability of a foreign worker with significant enough talent to petition themselves as an alien worker into the U.S. However, most employers already know they wish to offer a job, and the Department of Labor requirements are all they need waived – especially when they have already been searching for some time. From time to time, the Department of Labor recognizes this in specific fields. It predetermines that there are not sufficient U.S. workers to meet the demands.

One such designation is that of “Schedule A” occupations. For these occupations, the DOL will generally waive the onerous Labor Certification requirements without the need for much independent inquiry. This is particularly useful in the Lehigh Valley in the field of professional nurses. My wife works as a nurse; I can tell you that the Department correctly deduced the severity of the shortage. Professional nurses, typically Registered Nurses or those with higher or more specialized nursing training, may be petitioned by an employer without the labor certification process. Employers in particularly dire situations may also apply for Premium Processing to further expedite the procedure.

STEM fields are also seeing an increasingly friendly DOL and USCIS in 2022 through expanded STEM optional practical training, which allows those on student visas to remain longer in the United States to train in their intended field. Such an extension also allows employers to consider their talents for potential petitions for permanent employment. Fields such as data science, business analytics, and cloud computing all received extensions under the new guidance.

With the labor shortages facing most areas of the economy and the relatively friendly administration in the White House, now would be the ideal time for companies looking to bring on foreign workers to do so. Immigration is a quickly changing field and finding key skilled employees now may well position a company for success before these rules change again.

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