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Immigration Can Help Fill Gaps in Tight Labor Market

March 17, 2022
With certain visas, there are some viable options for filling certain jobs with non-citizen workers.

The story for 2021 was not just one of national economic recovery but also the persistent and chronic labor shortage. No industry felt this shortage more acutely than manufacturing. Even before the pandemic wiped out a decade of job gains, manufacturing was experiencing ominous trends. Increasing production demand, an aging workforce, fewer candidates for jobs and higher turnover due to heavy workloads for understaffed factories all left industry reeling.

Historically, immigration has been a key supplement to the U.S. workforce. Now is the time for manufacturers to look to immigration once again.

When most industry leaders hear this, they are understandably leery. With the intense politicization of immigration and the complex bureaucracy that goes into getting just one immigrant worker, it’s no wonder. However, legal immigration should not be viewed negatively or as cumbersome but rather as a win-win investment for the future of manufacturing and the future of our country.

Specific Types of Immigration that Can Make the Difference

The immigration system is incredibly complex, with an alphabet soup of categories that have certain waivers, exceptions, exemptions, and special circumstances. But in viewing legal immigration, it is best to think first of two categories:  Non-immigrant and immigrant. Non-immigrant visas are for those who are only staying in the United States for a temporary period. Immigrant visas, also known as Green Cards (so named for the color of the card immigrants receive), are for those coming to live in the United States on a permanent basis. The current immigration system, while unable to meet all the needs for manufacturers, can nevertheless offer viable alternatives:

Non-Immigrant Visas

TN – Mexican and Canadian Professionals

The United States has international trade agreements with several countries that include work visa options for the country’s citizens. Manufacturers should also check to see if the United States has a trade agreement with the nation where they are looking to sponsor labor.

The most well-known agreement is the United States-Mexico-Canada Agreement (USMCA). Citizens of Canada or Mexico are given work visa options under USMCA in a variety of professions, including engineering technicians and technologists and computer systems analysts. Manufacturers may find this option useful in filling highly specialized robotics and mechatronics technician jobs, where candidates typically have extensive experience and some post-secondary education or training, but not a bachelor’s degree. There is no limit on the number of years one can work in TN status, but the employment must always be temporary.

J-1 Exchange Visa

A J-1 visa is a non-immigrant, exchange visa issued to foreign nationals to participate in programs and jobs that promote cultural exchange. J-1 exchange visitors may come in many different categories, but most pertinent to manufacturing jobs, they can be interns and trainees.

Interns can work in the U.S. for 12 months, trainees for 18 months.

Immigrant Visas

If the employer wishes to try to employ a foreign national beyond the time limit of the noni-mmigrant visa category, the employer must sponsor the foreign national for permanent residency. At first pass, the word “sponsor” can seem overly burdensome as it relates to immigration. Ideas of being on the hook for the well-being of an immigrant worker raise anxieties for business owners. However, “sponsorship” for employment and work visas is not as daunting as the first impression might give. Sponsorship in the work-visa context is simply that a business has a job available for the immigrant worker and the ability and intent to pay the worker an appropriate wage for their performance of that job.

There are five different types of employment-based (“EB”) categories for green cards: EB-1 (extraordinary ability), EB-2 (advanced degrees or exceptional ability), EB-3 (2-year experience skilled jobs or unskilled), EB-4 (religious), and EB-5 (major investors).

While the full permanent residency process usually takes at least a few years to complete, a sponsoring employer can have an immigrant worker on-site in as little as 1.5 years. For individuals from China and India, however, it can take much longer due to complicated immigration rules.

EB-3 Unskilled Visa

Food packaging companies in particular are known for using EB-3 unskilled visas to supplement their workforce. With an EB-3 unskilled visa, foreign nationals can perform entry-level jobs (requiring less than two years of training or experience) on a permanent, full-time basis. Congress has set aside 10,000 visas annually for these types of jobs 

For an EB-3 unskilled case to begin there are three phases with the Department of Labor (DOL) which establish the employers right to sponsor the immigrant visa: First, the employer applies to the DOL for the issuance of a “prevailing wage” for the position. The prevailing wage is the hourly wage, usual benefits, and overtime paid to most workers of a certain occupation within a particular area. An employer must be able to pay the prevailing wage to the intending immigrant to qualify as a sponsor. Second, the employer shows that no U.S. applicant met the minimum requirements for the position by performing a “Labor Market Test.” This “test” involves some limited advertising of the available job. Third, the employer files the Labor Certification Application with the DOL, showing that the employer performed the labor market test and has an immigrant they would like to sponsor.

Once the above process is completed with the DOL the process moves to the United States Customs and Immigration Service (USCIS). At this step the employer files a form showing that the DOL has approved the sponsor/employee relationship while the intending immigrant files an application for work authorization and for a green card. Once work authorization is approved, the intending immigrant can go to work for the sponsoring employer.

Although the process generally takes around 1.5 years from the time the Prevailing Wage is requested to the time the immigrant is given work authorization, as long as the proper steps are followed, approval ratings are high. The process may still seem overwhelming as an individual undertaking, but there are agencies in the U.S. that specialize in assisting employers and intending immigrants through this process at little cost and low risk to the sponsor.

Finding an Immigrant Worker

Often, the next question is where exactly one finds these immigrants. Over one million foreign nationals already reside in the United States as F-1 student visa holders. These student visa holders have already been vetted by the U.S. Department of State and the U.S. Department of Homeland Security and legally entered the country. For these students looking for opportunities to stay after their U.S. education is over, the EB-3 unskilled visa and an opportunity to move up at a manufacturing company offers an enticing prospect. This means manufacturing companies often get top students to work in entry-level jobs who then quickly advance up the corporate ladder after having been at all levels of the company.

Securing approval to employ foreign nationals in the United States can be challenging, but for the industry to grow and thrive manufacturers will need to invest in their long-term futures. The best means of doing so is through the immigration system, which provides a largely untapped source of talent.

Christopher Richardson is a former U.S. diplomat and general counsel and COO of BDV Solutions. Ben McEuen is a paralegal and Juris Doctor candidate at the University of Dayton School of Law. He currently serves as a processing team manager at BDV Solutions. 

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