U.S. consulates deny a large majority (61%) of employer-sponsored immigrant visas for prospective lawful permanent residents because they claim to have found a problem with their job offers. The denials void work certifications and petitions approved by the Departments of Labor (DOL) and Homeland Security (DHS) and contrast with the rare DHS denials (4%) for workers applying for green cards while they are already inside the United States. Although this staggering denial rate has existed for decades, the State Department has never explained it publicly, and no one has reported on it before.
It appears the denials are so high in part because the department places so little weight on prior DOL and DHS approvals. The much greater difficulty of obtaining a green card overseas has significant implications for US immigration. This encourages many immigrants to apply for easier-to-obtain temporary visas, which unnecessarily use up limited places under these programs, while others may forego legal immigration and seek to enter illegally.
Legal immigrants to the United States have two ways to receive a green card (indicating lawful permanent residence). The first is to obtain a Department of State immigrant visa authorizing travel to the United States from a United States consulate or embassy abroad. The other approach is to move from temporary to permanent status in the United States. Employer-sponsored immigrants typically obtain a temporary work visa and only then go through the employer-sponsored green card adjustment of status process in the United States.
– ADVERTISING –
In 2021, 161,451 employer-sponsored immigrants adjusted their status in the United States, while only 15,026 (9%) received immigrant visas overseas. The ease of obtaining temporary work visas versus difficult immigrant visas certainly contributes to this huge disparity. Employer-sponsored green cards typically require permanent labor certification from the DOL, a process that currently takes over 500 days to complete at great expense and risk. Then, employers submit a petition to DHS requesting permission for the worker to apply, whether in-country or overseas.
Since applying for a green card or immigrant visa is the last step and follows verification by two different departments, denials should be rare, and they concern workers in the United States. DHS has denied only 4% of employer-sponsored immigrants to apply to adjust their status to permanent residency in 2021. But that’s a whole other story at consulates abroad. The Department of State does not report the total rejection rate for employer-sponsored immigrants for each ineligibility ground. It only reports refusals under the ground of ineligibility for labor certification. The labor certification ground only applies to employer-sponsored immigrants in the EB-2 and EB-3 categories (which excludes the EB-1 category which has a lower number of outstanding scholars, executives, and people with extraordinary abilities). Immigrants are only turned away on this ground if the State Department claims to have found a problem with their job offers.
Figure 1 shows the number of immigrant visa approvals and labor certification denials for EB-2 and EB-3 immigrants since 1992, when these categories were first implemented. This excludes denials that were eventually reversed. As can be seen, denials skyrocketed in 1995 and have remained extraordinarily high to this day. Another significant spike occurred in the 2000s when rejections finally hit an all-time high of 79% in 2009. It has fallen somewhat since then, but in 2019 and 2020, 61% of applicants were turned down. These rejections came about because the State Department claimed to have found a problem with their job offer. If all the different grounds for refusal were included, such as misrepresentation, public office and criminal bars, the refusal rate would be even higher.
The contrast between overseas processing and domestic processing is striking. Since 2008, about 8% of employer-sponsored immigrants have been turned away when adjusting their status. Meanwhile, overseas workers were about 8 times more likely to be refused. The average rejection rate abroad was 63%. National statistics include the EB-1 category, which includes some very prominent figures, but those nominees represent only a minority of the total and would not explain the difference. In any case, national statistics include all reasons for refusal, not just because of a problem with the job offer, so the low national refusal rate would be even lower if these other reasons could be discarded. Unfortunately, DHS does not record refusal reasons electronically, so it cannot produce these statistics.
The overall immigrant visa denial rate (which also includes Family Lottery and Diversity programs) has averaged about 14% over the past decade, well below the denial rate for immigrants sponsored by employers. It is extremely difficult to maintain a rejection rate of this magnitude as applicants adapt to improve their applications rather than wasting their money on a rejection. Anyone applying for an employer-sponsored immigrant visa has already gone through two difficult processes with the DOL and DHS and is highly motivated to receive approval, especially while overseas.
It is not possible to say exactly why these refusals take place. The Department of State does not list specific reasons for denial of DOL labor certification, nor does it provide a breakdown of denials by consulate or nationality or otherwise. Some issues may arise at the consulate that the DHS or DOL may have initially missed. Perhaps the petitioner failed to disclose a family relationship to the immigrant as required by the DOL or perhaps the petition claimed the immigrant spoke very good English, but at the visa interview immigrant, the applicant had difficulty communicating. But these problems could also easily arise at the national level during an adjustment of status, and there is no reason to suspect that they would constitute the majority of all cases.
I contacted a few people who might know why this is happening, and a former consular officer told me:
The negative attitude towards DOL and [DHS] judges among [consular officers] is fairly endemic to the foreign service. I’ve had too many conversations with others [consular officers] where I reminded people that the starting point should be that these agencies are doing their job and it’s in most cases a waste of time to reassess or guess. This is saved in the [Foreign Affairs Manual] in some sections, but not all. Instead, the starting point is that these agencies simply “approve everyone” without meaningful scrutiny, so the state must save the world by using its unique ability to personally interview the applicant (who, anyway, doesn’t is not the best source of evidence for plaintiff’s intent).
Another former consular officer with 15 years of experience gave a more specific reason:
the relatively high refusal rate and the low rate of exceeding these [immigrant visas] reflects the perception of many [immigrant visa] units that the labor certification process, as administered by the DOL and reviewed by [DHS], is deeply flawed and is abused by some employers and employees. The consular staff responsible for [immigrant visa] the cases apply a much narrower interpretation of whether or not the plaintiff reasonably intends to work for the employer.
These comments are extremely concerning as they express deep hostility to the DOL-DHS employer-sponsored process, questioning the legitimacy of all endorsements. One reason that the Foreign Affairs Handbook lists as grounds for doubting that an immigrant really intends to actually perform the job indicated on the work certificate is particularly worrying: “the applicant has never worked before or has never worked in the same type of company as this one”. of future employment. In addition to the employer, the DOL and DHS have already reviewed applicants’ qualifications and approved them. The State Department should not deny people from seeking different types of jobs than they have in their home country.
If employer sponsorship were so rife with fraud that the State Department had to deny a large majority of employer-sponsored immigrant visas, nonimmigrant visa denial rates would surely be similar. But they are not close and never have been. In the mid-2000s, the H-2B denial rate hit an all-time high of 28%, but has since fallen to 6%, and most of those denials are based on concerns about visa overstays, which are not not a problem for the green card. holders. Nevertheless, as expected, employers and workers adjusted, and the refusal rate still fell. Yet the last time the EB-2/EB-3 immigrant visa denial rate was as low as the H-2B record was in 1994 (Figure 3). It also means that the State Department cannot explain the lower national green card denial rate by claiming that nonimmigrant visa denials eliminate fraud.
The upshot is that these rejections simply shouldn’t be happening at this staggering rate. Two different agencies have already screened these workers, but the State Department is reversing their decisions. The three departments involved in the employer-sponsored system blatantly discriminate against the permanent immigration system, adopting more favorable and streamlined rules for the temporary system, and that’s bad for everyone. Agencies directly encourage employers and immigrants to use the temporary work visa system unnecessarily. This not only delays the receipt of a green card by the immigrant. It also removes a temporary visa cap slot for some workers for whom a temporary route makes more sense. The State Department’s blockade of employer-sponsored immigrant visas should end.
(This article first appeared June 1, 2022 on Cato.org)