Stacked Cards

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Wearing an expensive suit and toting a Coach bag, an attractive Indian woman walks into the fluorescent-lit waiting room of a Lower Manhattan law office on an October afternoon. Somewhere down a long hall, a fax machine whirs and voices echo. Sitting, she glances tentatively at the other people encamped along the small bank of chairs. She picks up a magazine but does not read it. She waits. This is a skill the 35-year-old financial consultant with an MBA from Columbia University has perfected over the last four years, since her quest for a green card began.

Permitted to stay in the country until next March by a temporary work visa, she is seeking permanent U.S. residency through the sponsorship of her employer. But her employer’s petition, filed in June 1998, has remained frozen in the first stage of the process–a tortuous procedure with the appropriately arcane name “alien labor certification.”

Administered by the U.S. Department of Labor and state labor departments, the program was designed to make sure that foreigners did not siphon jobs away from the American workforce. It has also allowed a significant number of immigrants, skilled in everything from housekeeping to computer programming, to get legal permission to work permanently in the U.S.

But over the last two years, a surge in applications–spurred largely by an act of Congress intended to make work permits easier to get–has brought labor certification to a near-halt. Steep staff cuts have left both the federal and state labor agencies overwhelmed with paperwork that they do not have the capacity to process.

Obtaining a labor certification in New York has now become a years-long ordeal. New York State currently has the worst delays in the country, with more than 50,000 applications pending. In October 2002, the New York State Department of Labor was processing applications from October 1998, and a newer fast-track process is backed up by a year and a half. And that’s just step one: Once they are approved by the state agency, applications must go to the U.S. Labor Department’s regional office–which is still processing December 2001 paperwork. Only then can they proceed on to the Immigration and Naturalization Service.

All in all, these delays result in a wait of as much as five years for a labor certification in New York State. The fast-track alternative, the avenue most employers seeking a labor certification now pursue, can take as long as two years.

As a result, one of the biggest barriers these days to tens of thousands of immigrants seeking to settle in New York is not an INS anti-terror initiative, but the weak economy. Under federal law, employers sponsoring an immigrant for a green card must prove that no qualified U.S. candidates exist for the job. With unemployment creeping upward in most industries, that is increasingly hard for them to do: Jobs that might have had few applicants when the paperwork was first filed are now much more likely to have acceptable resident candidates seeking them. “Right now, things that were shortages a year ago, it’s generally accepted they’re not shortages anymore,” says a staffer at the U.S. Department of Labor who asked to not be named.

The financial consultant visiting her lawyer’s office is all too aware that there are no guarantees she’ll prevail. “The uncertainty is very scary,” she says. “If my application is not cleared by the time my visa runs out, I might get thrown out of the country.”

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The hellish green card bureacracy was created by a single clause of the 1952 Immigration and Nationality Act. It has since grown into dozens of pages of regulations and policy directives. The heart of the process, the primary hurdle for any company wishing to hire a foreign worker, is a test of the often mercurial labor market. “I tell my clients it’s like fishing,” says Manhattan immigration attorney Allen E. Kaye. “You put a hook in the water, and if you can show there are no qualified fish in the pond at the prevailing wage, then you’ll get the labor certification.”

Employers must follow a series of steps, including a recruitment effort supervised by the local labor department in which they are required to demonstrate, by advertising in newspapers and elsewhere, that there are no U.S. workers able, willing and qualified to take the job sought by the foreign worker. If a U.S. worker with minimum skills turns up, even if those qualifications pale next to those of the foreign worker, the local labor department will recommend that the labor certification application be denied. Successful applications, meanwhile, move on to the feds.

But employers and their advocates say that this procedure has essentially ceased to function. “That kind of system made sense when it only took three months from start to finish,” says Theresa Cardinal Brown, director of immigration policy for the U.S. Chamber of Commerce. “Now you’ve got a process that takes three years or more.”

In October 1996, the U.S. Department of Labor developed a tonic for its sluggish labor certification system–an alternative, fast-track application called Reduction in Recruitment (RIR). It allows an employer to seek job candidates prior to submitting an application for a foreigner to take the position, eliminating the cumbersome procedure of a supervised recruitment drive.

RIRs are generally given priority over traditional applications, but not everyone can file one. Labor Department guidelines stipulate that an RIR is permitted only for occupations for which “there is little or no availability” of American workers and that have no “restrictive job requirements,” such as special language skills. That second measure is meant to discourage employers from creating highly specific job descriptions tailored to their immigrant candidate.

Nonetheless, RIRs became hugely popular among delay-weary employers and foreign workers–whether they met the criteria or not. Now RIR applications are backlogged as well.

Tightening labor markets are only making the delays worse. If there have been layoffs in a particular industry, the U.S. Department of Labor often compels companies to run additional advertisements. And if a company sponsoring a worker has laid off employees, it must explain why none of those workers was considered for the position sought by the foreign applicant.

In the current economy, such restrictive measures were probably inevitable. What truly vexes many companies and foreign workers is the lack of predictability. Says David Grunblatt, an immigration attorney with Wildes, Weinberg, Grunblatt & Wildes, P.C., a Manhattan law firm, “Nobody can plan, and everybody’s in a panic.”

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Delays in labor certification have existed for at least a decade, but lawyers for workers and employers blame a well-intentioned act of Congress for making matters worse.

Section 245(i) of the immigration law, which allowed illegal immigrants to apply for permanent residency without leaving the U.S., originally expired in January 1998. When Washington revived it for four months in the the spring of 2001, the number of labor certification applications exploded, from an average of about 100,000 each year to 235,000 in those four months alone.

That year, the number of applications in New York State increased sixfold. According to U.S. Department of Labor figures, 51,924 applications were piled onto the state’s more than 10,000 applications from the previous year. Just 9,619 were processed in 2001. In the first six months of 2002, the New York State Department of Labor received another 4,850 applications and processed just 5,734, leaving a total of 53,027 applications still pending. “245(i) is what really buried us,” says a second source at the U.S. Department of Labor. “It was a total knockout.”

It didn’t help that many of the labor certification applications clogging the works are less than legitimate, variously described by immigration attorneys as “junk,” “crap” and “deadwood.” “When these deadlines came for 245(i), people were desperate to file,” says Grunblatt. “It was like a stock market panic. Many people thought it was some kind of amnesty, and they all knew that ‘if I get something into the system, that will protect me.’ So you had the most ridiculous job offers and incomplete paperwork done.”

The brief reinstatement of 245(i) offered needed protection to illegal immigrants, but it also greatly increased the wait for those seeking a green card through employer sponsorship. “It’s an ironic result that in an effort to create certain protections for persons who’ve been here without lawful status, the result of that is, in large measure, to harm the ability of lawful immigrants to the U.S. to become permanent residents in a timely basis,” says Ted Ruthizer, head of the corporate immigration group at Bryan Cave LLP. “Nobody thought through and made any provisions for how to deal with that.”

In fact, Congress did worse than fail to make provisions for the onslaught: It passed steep budget cuts for the bureaucracies processing all the paperwork. Federal funding for the units processing work applications decreased by about half over the last 10 years, according to the U.S. Department of Labor, even while the workload more than doubled. States, which get reimbursed by the feds to administer their programs, have borne the brunt of these cuts. In the last two years alone, federal money allocated to state programs shrank from $40 million to $26.1 million.

“The states are our first line,” says the department staffer. “And they’re overwhelmed. They haven’t had any increase in staff. In fact, they’ve decreased staff significantly in the last few years, while getting a tremendous increase in workload.”

In the U.S. Department of Labor’s regional New York office, the number of staff has steadily decreased, dropping from 20 in 1994 to 14 in 2002. At the same time, labor certification applications received annually by the New York regional office rose from 6,530 in 1997 to 12,300 in 2002.

Staff cuts have also hit the labor certification division at the New York State Department of Labor, but a spokesperson refused to provide specifics, referring inquiries to the U.S. Department of Labor. “It’s their program.”

Not necessarily so, says the U.S. Department of Labor staffer. “We fund the states and we give them the guidelines, but it really is a state-run program.”

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Waiting for a labor certification application to break free of bureaucratic amber often means plans put on hold and dreams deferred. “I have clients who have aspirations,” says immigration attorney Mark Kalish. “They want to start their own businesses. I tell them, you can’t, not until you got your green card.”

A civil engineer from South America, who only recently filed his application and has less than a year left on his work visa, says he feels like he cannot think about the future. “I don’t want to plan too far ahead. I might have to leave.”

Many foreign workers in the labor certification line take great pains to remain in their employer’s good graces, even if they are being mistreated. The civil engineer, for one, is reluctant to ask his employer for time off. “I can’t afford to,” he says.

Attorney Jun Wang has had clients whose employers have withdrawn their labor certification applications midway through the process. When a foreign worker is fired or laid off, says Wang, the labor certification clock usually winds back to zero. “I have clients who were let go because of the economic downturn,” says Wang. “And it happened during the process of the labor certification. They have to find a new employer, change their status, and the labor certification has to start all over again–if the new employer is willing to do it.”

There are pockets of hope. Employees with temporary work visas fret that their visas will expire before they get their labor certification, but attorneys report that the New York State Department of Labor is often willing to expedite an application if a worker’s visa is close to running out. “I have to give them a compliment,” says attorney Deborah Notkin, “in that they’re reasonable and efficient in how they expedite the case when you give them really good cause.”

Another bright spot emerged this fall, when Congress approved, as part of the Department of Justice budget bill, a provision allowing extensions of H-1B temporary work visas in one-year increments if a labor certification has been pending for at least 365 days.

And this May, the U.S. Department of Labor issued a proposal to overhaul the program. Called PERM for “permanent,” the new regulations would allow employers to file directly with regional offices of the U.S. Department of Labor. Applications would be processed in an automated system that could take as little as 21 days. The trade-off is that random applications would be subject to full audits, and lawyers will likely have a harder time haggling over technicalities that could make all the difference for their clients.

The proposed new system is a mixed bag, as Allen E. Kaye sees it, but he gives the government credit for trying to reform: “There’s a lot of good in it. And there’s a lot of bad in it. But they have to do something.”

Adam Fifield is the author of A Blessing Over Ashes: The Remarkable Odyssey of My Unlikely Brother and a collaborator with Wayne Barrett on Rudy! An Investigative Biography of Rudolph Giuliani.