Consulates Deny 61% of Employer‐​Sponsored Immigrant Visas

U.S. consulates deny a large majority (61 percent) of employer‐​sponsored immigrant visas for prospective legal permanent residents because it claims to have found a problem with their job offers. The denials reverse labor certifications and petitions approved by the Departments of Labor (DOL) and Homeland Security (DHS) and contrast with rare denials by DHS (4 percent) for workers applying for green cards while already inside the United States. Although this astounding denial rate has existed for decades, the State Department has never publicly explained it, and no one has previously reported on it.

It appears that the denials are so high partly because the department grants so little weight to earlier approvals by DOL and DHS. The much greater difficulty in obtaining a green card abroad has important consequences for U.S. immigration. It encourages many immigrants to apply for easier‐​to‐​obtain temporary visas, which unnecessarily uses limited cap spots under those programs, while others may give up on legal immigration and seek to enter illegally.

Legal immigrants to the United States have two ways to receive a green card (denoting legal permanent residence). The first way is to obtain an immigrant visa from the State Department authorizing travel to the United States at a U.S. consulate or embassy abroad. The other approach is to adjust from temporary to permanent status in the United States. Employer‐​sponsored immigrants usually obtain a temporary work visa and only then proceed through the employer‐​sponsored green card adjustment of status process in the United States.

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In 2021, 161,451 employer‐​sponsored immigrants adjusted status in the United States, while just 15,026 (9 percent) received immigrant visas abroad. The ease of obtaining temporary work visas over difficult immigrant visas certainly contributes to this huge disparity. Employer‐​sponsored green cards typically require a permanent labor certification from the DOL, a process that currently takes more than 500 days to complete at great expense and risk. Then employers submit a petition to DHS requesting approval for the worker to apply, either domestically or abroad.

Since the green card or immigrant visa application is the final step and follows vetting by two different departments, denials should be rare, and they are for workers in the United States. DHS denied just 4 percent of employer‐​sponsored immigrants seeking adjustment of status to permanent residence in 2021. But it’s a completely different story at consulates abroad. The State Department does not report the total denial rate for employer‐​sponsored immigrants under every ground of ineligibility. It only reports denials under the labor certification ground of ineligibility. The labor certification ground only applies to employer‐​sponsored immigrants in the EB‑2 and EB‑3 categories (which excludes the EB‑1 category that has a lesser number of outstanding researchers, executives, and people with extraordinary ability). Immigrants are only denied under 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. It excludes denials that were eventually overturned. As it shows, denials shot up in 1995 and stayed extraordinarily high through the present. Another significant spike occurred in the 2000s when denials eventually reached an all‐​time high of 79 percent in 2009. It has come down somewhat since then, but both in 2019 and 2020, 61 percent of applicants were denied. These denials occurred because the State Department claimed to have found a problem with their job offer. If all the different grounds for denial were included—such as misrepresentation, public charge, and criminal bars—the denial rate would be even higher.

Photo: Cato.org

The contrast between processing abroad and the processing domestically is stark. Since 2008, about 8 percent of employer‐​sponsored immigrants were denied while adjusting status. Meanwhile, workers abroad were about 8 times more likely to be denied. The average denial rate abroad was 63 percent. The domestic statistics include the EB‑1 category, which includes some very prominent individuals, but these applicants are only a minority of the total and would not explain the difference. In any case, the domestic statistics include all grounds for a denial, not merely because of a problem with the job offer, so the low domestic denial rate would be even lower if these other grounds could be set aside. Unfortunately, DHS does not record the grounds for denial in any electronic way, so it cannot produce those statistics.

Photo: Cato.org

The overall immigrant visa denial rate (which also includes family and diversity lottery programs) has averaged about 14 percent over the last decade, far below the denial rate for immigrants sponsored by employers. It is extremely difficult to maintain a denial rate of this magnitude because applicants adapt to improve their applications rather than throw away their money on a denial. Every person who applies for an employer‐​sponsored immigrant visa has already navigated two difficult processes with the DOL and DHS and is highly motivated to receive an approval, particularly since they are abroad.

It’s not possible to say exactly why these denials are taking place. The State Department does not list the specific reasons for rejecting DOL’s labor certification nor does it provide a breakdown of denials by consulate or nationality or in any other way. Some problems could show up at the consulate that DHS or DOL may have initially missed. The petitioner may have failed to disclose a familial relationship with the immigrant as DOL requires or perhaps the petition claimed that the immigrant could speak English very well, but during the immigrant visa interview, the applicant struggled to communicate. But these issues could easily come up domestically during an adjustment of status as well, and there is no reason to suspect that they would constitute a majority of all cases.

I reached out to a few people who might know why this is happening, and one former consular officer told me:

The negative attitude toward DOL and [DHS] adjudicators among [consular officers] is pretty endemic to the foreign service. I’ve had too many conversations with fellow [consular officers] where I’ve reminded people that the starting point should be that those agencies are doing their jobs and it is in most cases a waste of time to re‐​adjudicate or second guess. This is backed up in the [Foreign Affairs Manual] in certain sections, but not all. Instead, the starting point is that those agencies are “just approving everyone” without meaningful review, therefore State has to save the world by using its unique ability to personally interview the applicant (who, in any case, is not the best source of evidence for the petitioner’s intent).

Another former consular officer with 15 years of experience gave a more specific reason:

the relative high denial rate and low overcome rate on these [immigrant visas] reflects the perception on the part of many [immigrant visa] units that the labor certification process, as administered by DOL and reviewed by [DHS], is deeply flawed and being abused by some employers and employees. Consular personnel dealing with [immigrant visa] cases are applying a much more narrow interpretation of whether or not the applicant reasonably intends to work for the employer.

These comments are extremely concerning because they express a deep‐​seated hostility toward the DOL-DHS employer‐​sponsored process, questioning the legitimacy of all approvals. One reason that the Foreign Affairs Manual lists as grounds to doubt whether an immigrant actually intends to actually work the job listed on the labor certification is particularly worrying: “the applicant has never worked before or has never worked in the same type of business as that of the prospective employment.” Besides the employer, both DOL and DHS have already reviewed applicants’ qualifications and approved them. The State Department should not be denying people for seeking different types of jobs than their jobs in their home countries.

If employer sponsorship were so rife with fraud that the State Department needed to deny a large majority of employer‐​sponsored immigrant visas, surely the nonimmigrant visa denial rates would be similar. But they are not anywhere close nor have they ever been. During the mid‐​2000s, the H‑2B denial rate reached a record high of 28 percent, but has since fallen to 6 percent, and most of these denials are based on concerns about visa overstays, which are not an issue for green card holders. Nonetheless, as expected, employers and workers adjusted, and the denial rate fell anyway. Yet the last time the EB‑2/EB‑3 immigrant visa denial rate was as low as the H‑2B record high was 1994 (Figure 3). This also means that the State Department cannot explain the lower domestic green card denial rate by claiming that the nonimmigrant visa denials weed out the fraud.

Photo: Cato.org

The upshot is that these denials simply should not be happening at this astounding rate. Two different agencies have already vetted these workers, yet the State Department is reversing their decisions. All three departments involved in employer‐​sponsored system blatantly discriminate against permanent immigration system, adopting more favorable, streamlined rules for the temporary system, and that’s bad for everyone. The agencies are directly incentivizing employers and immigrants to unnecessarily use the temporary work visa system. This not only delays the immigrant’s receipt of a green card. It also takes a temporary visa cap spot away from some worker for whom a temporary path makes more sense. The State Department’s blockade on employer‐​sponsored immigrant visas should end.

(This article first appeared June 1, 2022 on Cato.org)

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