What the Current Backlog in PERM Labor Certifications, DOL Prevailing Wage Requests, and Pending and Approved I-140s Means for Future Visa Bulletin Movement in the EB-2 and EB-3 Categories
The U.S. immigration system's complexity, combined with its systemic administrative incompetence, opaque release of information, and the known, massive backlog has profound consequences on individuals' lives. Worse, however, is the hidden demand that is not yet reflected in the Department of State's Visa Bulletin. The reality is that as bad as the July 2023 Visa Bulletin is, it does not reflect the actual reality of the current wait times, not only for the two high-demand countries (India and China), but for the Rest of the World (ROW). The situation for employment-based immigrant is far more apocalyptic than virtually anyone imagines. Specifically, the Visa Bulletin does not account for the pending number of PERM labor certifications at the Department of Labor (DOL), the number of Prevailing Wage requests at the DOL that will turn into PERMs, or the pending number of pending I-140s at USCIS in the EB-2 and EB-3 visa categories.
PERM labor certifications and Prevailing Wage determinations are initial steps for most employment-based Green Card applications. PERM, short for Program Electronic Review Management, is a process through which an employer obtains a labor certification from the DOL, affirming that there are not enough U.S. workers who are able, willing, qualified, and available to do the job, and that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. Similarly, a Prevailing Wage request is necessary to ensure that the wage being offered to the foreign worker meets or exceeds the industry's standard wage for the position in that geographical location for the PERM filing.
The pending number of PERM labor certifications and Prevailing Wage requests at the DOL have been growing, primarily due to various factors such as increased scrutiny and the impact of the pandemic on DOL's operations. As of the latest data, there are tens of thousands of PERM labor certification applications and Prevailing Wage requests pending at the DOL. This backlog translates into longer processing times for these initial steps, delaying the subsequent steps in the Green Card process, including the filing of the I-140 Immigrant Petition.
The impact of this backlog is further compounded by the limited number of EB-2 and EB-3 visas available annually (40,000, including family members, in each category). These categories of visas, used by skilled workers and professionals, and advanced degree holders and "other" workers respectively, have a statutory cap. When coupled with the backlog in the initial stages of the process, this translates into a delay in visa availability for those who have already shown there are no qualified, willing, or able US workers for the jobs they are generally already filling.
The other step in the Green Card process, the I-140 petition, also suffers from an adjudicatory backlog at the USCIS. There are tens of thousands of EB-2 and EB-3 I-140 petitions pending at the USCIS.
Now that we have provided the outline of the problem, what do the numbers actually show? As of December 31, 2022 (USCIS has not released second quarter FY2023 numbers yet), USCIS has 381,757 approved EB-2 I-140s waiting for visa availability (351,436 of whom are Indian). There are 126,784 approved EB-3 waiting for visa availability (112,859 are Indian). USCIS has never released what perhaps is a critical piece of data, how many EB-2 also have downgraded to EB-3 (which would obviously reduce the number of actual people waiting to immigrate). Again, opaqueness is a problem. Let's ignore that number for now, as there is no way of estimating it. In total, just for India, there are about 462,000 Indian nationals with approved EB cases, which translates into about 970,000 actual Indian immigrants waiting for Visa availability.1 Taking into account the 7% per country limit and applying it to the 80,000 EB-2 and EB-3, numbers, you get a waiting time for a new Indian visa applicant with a just filed PERM (using a 5,600 visa/year denominator because as we will see in a minute, the flow through of immigrant visas is coming to abrupt halt from ROW) you get a wait time of 173 years. It's just math. This is far worse than the numbers I described in the blog I wrote about in 2009, shortly after I finished my term as AILA President, when I said described an outrageous 15 year wait time for Indian nationals who filed their Labor Certification in 2009.
"India EB-3 wait for permanent residence for a labor certification filed today: 15.8 years. This generous estimate comes from the fact that an estimated 399,717 Indian Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family-based immigrants which would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories, so the wait time is probably longer."
It turns out my estimate was about right since the Visa Bulletin has now set 2009 as the priority date for Indian EB-3s. This prescience, however, is foreboding with the current numbers. That is the good news. As that is the known knowns. The bad news is what follows—the hidden known knowns.
Everyone is complaining about the Department of Labor taking forever to adjudicate PERM applications, and even longer to process the prevailing wage requests that are the first, key part of the PERM process. Of course, virtually no one is bringing litigation on this, despite out best efforts. What is the impact of these delays on visa availability? Let's look at the numbers.
According to the DOL website, PERMs file in July 2022 are being worked right now. What does that mean numerically? While DOL does not release a total of the cases pending, the number is calculable from their monthly "requests received" / "determinations issued" report, simply adding all the cases filed since July 2022 as unadjudicated (which DOL says is what they are working on now), which gives us 164,800, and then add 15,000 for May and 15,000 for June (as low average monthly filings), and you get about 194,800 pending PERMs at DOL (not including those filed previous to July 2022 that are not adjudicated, and we all know those exist).
Now, add to those pending PERMs the pending prevailing wage requests. This gets a little tricky, but let's simply take the pending PERMs, that are averaging more than 15,000 filings a month as a starting point. The DOL disclosed only the date they are working on prevailing wages from (November 2022 for those submitted through OES and September 2022 for those not on the OES system). For those last seven months that would be about 105,000 pending prevailing wage request, virtually all of which will become PERMS.
Now add those two numbers together you have an additional 299,800 pending cases at the DOL that will all be coming into the USCIS system in the next year or two (and, again, for which were are only about 36,000 visas a year, or using the multiplier, 629,580 immigrant visas for 80,000 available annually, so just in the next 12 months DOL is sitting on 8 years MORE of EB backlog numbers. While it is unclear how may are from ROW v. India/China, we know there are far more ROW filings in the last several years than at any time since the 1990s.
Unfortunately, we are not done with the math yet. USCIS also has a role to play here. The most recent report from USCIS on their pending cases is from the end of Q1, FY 2023. USCIS does not breakdown the I-140s by category, but says they had 48,022 pending I-140 petitions on December 31, 2022. The best guesstimate is that 80% of those are for EB-2 and EB-3, which gives us 38,418 pending I-140, presumably all with priority dates within the last 24 months or so. The multiplier gives us 80,677 immigrant visa cases included in this number.
Now we have a realistic view of how many cases are actually "pending" and what this means for the Visa Bulletin going forward. As noted, anecdotal evidence suggests that there are a statistically higher number of ROW cases included in the pending PERMs, Prevailing Wage Requests, and pending I-140s than has historically been the norm.
Adding all these factors together – the backlog in PERM labor certifications, Prevailing Wage requests, and I-140 petitions, plus the limited number of EB-2 and EB-3 visas available annually – it becomes evident that those starting the PERM process today are in for a lengthy wait. Though processing times vary based on a variety of factors, and it's challenging to estimate precise timelines, it appears that the wait time for a new PERM ROW applicant, in the EB-2 or EB-3 categories will likely be at least 10 years before they will become eligible for consular processing or adjustment of status. And, for those individuals from high-demand countries like India and China, the wait times are exponentially higher. The China backlog had shrunk over the last 6 years because of the impact of denying student visas to Chinese nationals and the use of additional flow through immigrant visa numbers, this has, however, increased the number of Indian nationals as a percentage of EB-2 and EB-3 immigrant visa applicants.
The math gets us to the hard truth, there are will shortly be an additional 710,257 pending EB-2 and EB-3 immigrant visa applicants waiting for visa availability (not including any EB-2 NIW direct filings. Added to the current number that means we have over 1,800,000 million people in our EB-2 and EB-3 employment categories, many of whom are already working in the US, whose US employers have proved they are not taking jobs from US Citizens, or are persons whose immigration is in the National Interest. Even if we lifted the per country limit, the wait translates to a 20 year wait for everyone filing a prevailing wage today, with tens of thousands more being added each year.
This apocalypse is now dissuading the very immigrants we desperately need and will bode poorly over the next decade for the US economy. It is also extraordinarily unfair to everyone, regardless of country of birth. It short, our employment-based system is worse than broken it is harmful to our country and must urgently be fixed.
The obvious solution is for Congress to make a lot more immigrant visas available or to set a maximum period for waiting in the EB lines to no more than a few years. Proposals such as increasing the annual cap for employment-based visas, modernizing the PERM process, and improving the efficiency of USCIS operations can go a short way in resolving this issue. But this is no longer an India/China vs ROW issue. We saw this coming several years ago when there was a fight over getting rid of per country limits- which is a perfectly fine solution if the numbers available to immigration are adequate, but changing the limits, which many argue are unfair and no longer serve a purpose, will only have the effect of making everyone's wait longer. That has now occurred by virtue of the broken system.
Now, the fight is for The Whole World (TWW), not just the ROW. It's time for all immigrant organizations to come together and fight for sensible change that benefits immigrant and the US. Dividing immigrant groups against each other is, as shown, a recipe for disaster.
Without these joint efforts and until such changes are implemented, foreign workers and their employers must plan accordingly—plan for the immigration apocalypse.
1. In 2018, principal immigrants comprised 46% of the EB1, EB2, and EB3 green cards issued; derivative family members comprised the other 54%. See DHS, FY2018 Yearbook of Immigration Statistics, Table 7. https://crsreports.congress.gov/product/pdf/R/R46291 FN 23. This is about a 1.1 multiplier.
Originally published June 15, 2023
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