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Truck Driver Shortages May be Solved by Green Cards for Unskilled Workers (EB-3)

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For the past 15 years, the United States has been experiencing a severe shortage of available and qualified truck drivers. According to a recent report by the nation’s largest trucking industry group, the American Trucking Associations (ATA), by the end of 2018, the industry was short 60,800 driver positions. The ATA predicts that this trend will only get worse, with the shortage potentially expanding to 160,000 positions by 2028. The report warns that if the industry cannot hire 1.1 million new drivers over the next decade, the nation’s freight demands may not be able to be met. However, for employers that are having difficulty recruiting and retaining truck drivers, sponsoring a foreign truck driver for a Green Card based on employment may be a viable solution. For those that are looking for a more short-term, temporary solution, consider the H-2B visa.

Trucking Industry Recruitment Struggles

According to the ATA report, the main issue surrounding driver shortage is one of “quality over quantity.” Reports show that while there are plenty of people applying for truck driving job, unfortunately, not nearly enough of those applicants meet the stringent standards associated with the trucking industry. A 2015 ATA study found that 88% of trucking companies indicated that they were receiving sufficient numbers of applicants, but that many were simply not qualified for the jobs to which they applied.

Another issue faced by the trucking industry is driver age. According to the ATA report, the current average age of a driver is 46 and the average age of a new driver in training is 35. Recruiting younger drivers is vital to maintaining a long-lasting and stable workforce within the industry as many drivers approach the age of retirement. Without a consistent pool of qualified applicants, the industry faces an aging out that will further exasperate the shortages.

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Finally, the industry is also facing challenges with regard to turnover and job-hopping. The ATA report notes that driver turnover is a serious issue facing the industry with as much as 89% of drivers changing jobs at large trucking companies in 2018. This means that trucking companies are finding it increasingly difficult to retain long-term employees, thus reducing incentives to invest in vital training and development for those employees. As the driver shortages increase over the next decade this turnover rate will likely increase as well.

Legal Immigration as a Solution

One possible solution to help alleviate some of the driver shortages is to bring qualified foreign workers to the U.S. to cover these jobs. While applying for any immigration benefit to the United States is a complex and potentially long process, the benefits can nonetheless be worth the effort. This is especially true in an environment where a severe shortage of qualified workers means a potentially devastating loss in business opportunities.

Under the EB-3 Employment-Based Permanent Resident category for unskilled workers (requiring less than 2 years training or experience), a U.S. employer can petition to hire a foreign worker in a permanent (Green Card) capacity. To accomplish this, the employer must be able to demonstrate that there are insufficient workers in the United States to fill the roles. The trucking industry is in a potentially unique position with respect to this requirement because its labor shortage is well documented and severe, thus making the argument for needing to look outside the United States for capable workers a strong one.

The Permanent Resident Application Process

Obtaining EB-3 Permanent Resident classification for a foreign truck driver requires a petitioning U.S. employer to go through a multi-part application process. The first step is to obtain a prevailing wage determination from the Department of Labor (DOL). The “prevailing wage” is the average wage paid to similarly situated employees in the geographical area where the perspective employee will be employed. The prevailing wage represents the minimum wage the employer must be able and willing to pay the perspective employee and the minimum wage the employer must offer to perspective U.S. candidates during the recruitment process (see below).

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Once a prevailing wage has been obtained, the employer must then “test” the U.S. labor market to determine if sufficient U.S. workers exist. “Testing” the labor market consists of performing several recruitment steps that include advertising for the position in newspapers and/or online, reviewing submitted resumes, and interviewing any potentially qualified candidates. If the employer is able to locate a sufficient number of U.S. workers to meet its needs for the positions available, then it cannot move forward with the process.

If the recruitment process does not elicit a sufficient number of willing and able U.S. workers, the employer can then file a Permanent Labor Condition Application with the DOL. This application attests to the fact that the employer cannot locate sufficient U.S. workers to fill its employment positions, and is thus requesting permission to permanently hire foreign workers. The DOL will use this application to establish that the employer made a good-faith effort to locate U.S. workers for the role but was unable to do so. The employer must obtain a certified Permanent Labor Condition Application from the DOL to move forward with the process.

Once the Permanent Labor Condition Application is certified by the DOL, the employer can than file a Permanent Resident petition application with United States Citizenship and Immigration Services (USCIS). This petition will identify the employee to be hired, the specific employment position to be filled, and the perspective employee’s qualifications for the role. As part of the petition, the employer will file an application form (Form I-140) and supporting evidence such as job descriptions, employee credentials, and company documents.

Once USCIS approves the petition, the application process will then shift from the employer to the perspective foreign employee. To obtain Permanent Residence, the perspective employee will either have to apply for an immigrant visa (if the employee is outside the U.S.), or apply for Adjustment of Status (if the employee is in the U.S.). In either scenario however, the employee cannot apply for Permanent Residence until a Green Card becomes available.