Backlog Hinders Immigrant Labor

Time is not on the side of employers who need immigrants to fill jobs amid a nationwide labor shortage.

The processing of all types of applications — visas and green cards — is backlogged, as is the resolution of deportation cases. It’s a backlog caused not only by the great need, but by a crackdown under the Trump administration that added to the workload of immigration officials.

That’s according to three Arkansas attorneys and an executive with Arkansas Global Connect, a business that seeks to provide American employers with an efficient pipeline of reliable seasonal workers from abroad and to open a door of economic opportunity for job seekers.

The Department of Homeland Security is working to improve processing times now, but any improvement has yet to materialize, said Murad Elsaidi, immigration attorney at Murad Law Firm in Little Rock. 

But the automatic extension for employment authorization documents has been increased to 540 days from 360 days in an effort to address the existing backlog, said Laura Ferner of Crouch Harwell Fryar & Ferner in Springdale.

There also aren’t enough visas available to meet current needs, the attorneys and executive said.  

For example, H-1B visas for bachelor’s degree holders are capped at 65,000 per year, while there are another 20,000 for those who have a master’s degree, Elsaidi said.  

He said employers are responsible for paying to file a petition for this type of visa, which does not lead to a green card and is valid for three years. It can be renewed once.

Employers needing workers with H-1B visas have to prove to some extent — by advertising — that they couldn’t find qualified U.S. workers for the job they’re trying to fill. The Department of Labor also sets the required salary for H-1B workers.

United States Citizenship & Immigration Services has received 483,927 H-1B visa applications from employers for fiscal year 2023, a 57% year-over-year increase. 

What employers can do is talk to their congressmen and senators about raising the cap on visas, the attorneys said, as did Lydia Guzman.

“Employers can be active in advocating to pass sensible immigration reform with a pathway to citizenship with their members of Congress,” Guzman, national immigration committee chair for the League of United Latin American Citizens (LULAC), said by email. “Employers need to stress the important role they play in filling the labor needs.”

Tyson’s Program

Meanwhile, Tyson Foods Inc. of Springdale is taking another approach.

The company recently committed more than $1 million to provide legal services to immigrant employees and help them obtain U.S. citizenship, expanding its Tyson Immigration Partnership program from nine facilities to 40 in 14 states, said Garrett Dolan, Tyson’s senior manager of corporate social responsibility.

Ten of those 40 facilities are in Arkansas, where the meat processor has partnered with Springdale nonprofit Arkansas Immigrant Defense. Employees who need to consult with AID attorneys can do so onsite and receive paid time off for these consultations. 

AID’s Stephen Coger said the Tyson employees he’s met with have responded to the program with excitement.

The program is in its third year, and the current pandemic-caused labor shortage “drew an exclamation point” on the company’s mantra of helping its employees, Dolan said.

“It’s needed, and it’s been really helpful and effective,” he said. He said having such a program gives Tyson an edge in retention as well as recruitment for its good-paying but entry-level blue-collar jobs. 

These jobs have historically attracted immigrants, and fewer U.S. citizens are seeking them after decades of being encouraged to pursue higher education and white-collar jobs, Dolan said.

He said Tyson spends thousands of dollars per immigrant employee through the program, and it can take 12-15 months for each case to reach resolution.

Why should his company make these investments? “I think enlightened self-interest is always a good principle to have in the world of business,” Dolan said. “And then, as we go, as the years go on, it becomes more competitive for that labor. So that’s always an increasing driver of the program.”

But immigrants bring more to the table than just labor. LULAC’s Guzman said legal immigrants pay taxes and are strong consumers. She added that the biggest barrier to legalizing workers is that immigration reform “has been used as a political punching bag.”

“The policy changes and executive actions on immigration from the former president did not stop ‘illegal’ immigration; it only stopped the legal immigration,” Guzman said.

Elsaidi said the Trump administration made his job more difficult. H-1B visas and green cards make up about 30% of his practice. The other 70% is family-based immigration. 

The attorney said Trump required further proof on certain applications that the immigrant wouldn’t be a public charge, i.e., rely on welfare. So more questions were asked about their assets and liabilities, credit scores, health insurance coverage and education, he said.

“It was a lot. Now, it’s not as if that’s not already being asked to some extent,” he said. Before Trump took office in 2017, immigration application sponsors had to prove that they were financially capable of supporting the immigrants they were sponsoring.

But a big concern at the time was immigration officers denying applications because they thought the immigrant was likely to become a public charge, and there was no appeal process when that happened. All the immigrant could do was reapply and hope to get an officer with a different opinion, Elsaidi said.

And these are people who don’t have a Social Security number, which is required for health insurance companies in the U.S. to cover them, so proving they wouldn’t need government health care could be troublesome. “There were a lot of things that didn’t really make much sense with this policy, but once Biden came into office, he pretty much canceled it. And it went back to the way it was,” Elsaidi said.

Under the last administration, more immigrant workers with pending statuses but no criminal history were being picked up by Immigration & Customs Enforcement. This was, of course, an issue for their employers.

Today, enforcement priority has shifted back to criminal cases, and noncriminal cases are being dismissed so that the courts can resolve criminal cases more quickly, said Cristina Monterrey, managing partner at Monterrey Law Firm in Little Rock.

Monterrey, who focuses on deportation defense and family-based and humanitarian applications, said there is a backlog of deportation cases stretching to 2026 and that certainly affects employers.

In addition, citizenship applications, which used to take six months to process, are now taking more than a year, and permanent residency or legal status applications, which used to take six to nine months, are taking a year-and-a-half or longer, she said.

Monterrey said applications for people who are not yet in the United States are taking two years now compared with nine months previously. 

She mostly blames delays on more cases having been put into the system during the Trump administration.

Even employers requiring seasonal workers need to start the process early, said Arkansas Global Connect’s Dana Deree. They need to start it now if they need those workers in March, he said.

It essentially takes 90 days for agricultural workers, but longer for nonagricultural workers, Deree said.

He’s optimistic about 2023 prospects for his business because the need for labor continues to grow and there is underemployment in other countries, such as Honduras. His company doesn’t even need to advertise its services, Deree said.

Arkansas Global Connect, launched in September, works with some of the largest U.S. employers in the hospitality, manufacturing, food processing and restaurant industries, and has already placed 1,000 seasonal immigrant workers nationwide, he said. 

“It is a lengthy and complicated process. But it is better than not having the workforce that you need in order to meet your own obligations as a business,” Deree said. “It really is something that you’ve got to be purposeful about.”