State Department denies substantial percentage of employer-sponsored immigrant visas


Startling data recently revealed that consular officers were refusing applicants for employer-sponsored immigrant visas at a much higher rate than United States Citizenship and Immigration Services (USCIS) officers were refusing cards. green to employer-sponsored candidates.

Data analyzed by the Cato Institute shows that since fiscal year 2008, USCIS has refused about 8% of employer-sponsored immigrants, while the average refusal rate by consular officials was 63%. The Cato Institute has identified a disturbing difference that disadvantages employer-sponsored immigrants applying overseas that, to our knowledge, has never been raised before. Our analysis of the results and conclusions follows.

By “employer-sponsored,” the Cato Institute means the second category of employment-based (EB) preference for higher educated professionals or individuals with exceptional ability and the third category of EB preference for skilled workers, professionals or “other workers”.

In both of these categories (unless the noncitizen qualifies for an EB-2 national interest waiver), a noncitizen must have a job offer from a U.S. employer. The sponsoring employer must first have recruited U.S. workers and have received certification from the Department of Labor (DOL) that employment of the noncitizen in the proposed employment will not adversely affect wages and the working conditions of similarly employed American workers. Next, the sponsoring employer must receive approval from USCIS that the noncitizen is qualified for the employment-based preference category.

After USCIS approves the employer’s application, and if the noncitizen has legal nonimmigrant status in the United States, among other requirements, they may become a permanent resident of the United States after USCIS approval of his adjustment of status application. Otherwise, the noncitizen must have an immigrant visa issued by a consular officer at a U.S. embassy or consulate abroad, and then be admitted to the United States as a permanent resident.

For consular officer denials, the Cato Institute used immigrant visa ineligibility figures for labor certification in the Department of State’s Visa Bureau Annual Reports for fiscal years 1992 through 2020 – permanent work certification being required only for the second EB (without nationality). interest relief) and third preference.

USCIS numbers obtained by the Cato Institute have a broader scope: including any grounds for denial and the first EB category (for individuals of extraordinary ability, outstanding professors/researchers, and intra-company executives and leaders), which has no labor certification requirements. Yet denials from consular officials still far exceed denials from USCIS.

According to the Cato Institute, denials by consular officials “exploded in [Fiscal Year] 1995 and has remained extraordinarily high throughout the present. In fiscal years 2019 and 2020, consular officers turned down 61% of employer-sponsored applicants. Yet in 2021, USCIS only denied 4%.

As the Cato Institute notes, no explanation is provided for the consular officials’ refusals. A review of the Foreign Affairs Manual (FAM), which contains State Department policies and procedures, suggests the following possibilities. The FAM makes it clear to the consular officer that they are evaluating the candidate in person, not the DOL or USCIS, and “has the responsibility” to resolve any doubts about whether the candidate meets the qualifications for the position. Frequently, the consular officer will interview the applicant years after the DOL issued the employment certificate. The consular officer may consider whether the applicant still intends to work for the sponsoring employer in the proposed employment, even though the FAM states that the officer must have “objective reasons” to believe that the applicant will not will not comply with labor certification. The Cato Institute questioned why the FAM would list as a negative factor proof that the candidate does not have previous work experience in the same type of business as the job being offered. As stated in the blog, “The Department of State should not deny people from seeking different types of jobs than they have in their home country.”

While the disparity in rejection rates identified by the Cato Institute is concerning, the blog makes related claims that are questionable. The Cato Institute says the Departments of State, Homeland Security, and Labor “directly encourage employers and immigrants to use the temporary work visa system unnecessarily.” But immigrants aren’t avoiding consular processing because of low approval rates — the Cato Institute says, “no one has reported on this yet.”

There are other disincentives to consular processing. The backlogs are huge. Many immigrant visa applicants must first submit documents to the US-based National Visa Center. The National Visa Center’s Immigrant Visa Center Backlog Report indicates that 426,486 eligible immigrant visa applicants (based on family and employment) are still waiting to have scheduled interviews after the June 2022 meeting slots have been filled. Delay aside, with the added risk and expense inherent in overseas travel, why would non-citizens who already live in the United States risk the trip?

The blog also claims that it “removes a temporary visa cap slot from certain workers for whom a temporary path makes more sense.” But most employment-based immigrants apply to adjust their permanent resident status in the United States because they work in the United States under temporary (non-immigrant) categories provided by Congress. Congress specifically allowed H-1B (skilled occupation) workers — a category that has a “cap” unless an exemption is available — to work temporarily in the United States when they may also intend to become permanent residents. Congress, not the agencies, is responsible for the categories of temporary visas available. Congress, not the agencies, limits the number of immigrant visas available per year and further limits the percentage by country of birth. Congress has not reconsidered these limits for more than thirty years.

There is no reason for U.S. employers to forfeit the ability to hire qualified noncitizens, and noncitizens forfeit the ability to work in the United States while navigating the green card process.

FILED UNDER: Department of Labor, USCIS


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