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.

Sample Visa Bulletin

The applicant could endure significant wait time related to the annual quota that the US establishes to determine how many Green Cards can be issued per country. If more citizens from the perspective employee’s country apply for Green Cards in a given year, then the perspective employee will need to wait until his or her position in line becomes current. Given the fluid nature of the immigration process, Green Card wait times are constantly changing. A qualified immigration attorney can determine the current and possible near-term wait times based on the visa type and applicant’s country of origin.

Once a Green Card does become available for the perspective employee, he or she can then apply for an immigrant visa at a U.S. consulate or embassy (or adjust status through USCIS if currently legally in the U.S.). Once the employee obtains his or her Permanent Residence (Green Card) he or she can begin employment with the U.S. employer.

U.S. Licensing Requirements

The following information is provided by the Federal Motor Carrier Safety Administration.

Q1: Which foreign country’s Commercial Licenses are reciprocally recognized for operating a CMV in the United States?

A1: The only foreign commercial driver licenses (CDLs) that are accepted in the United States are from the federal government of Mexico and provinces and territories in Canada. The United States has CDL reciprocity agreements with only these two North American countries. In rare instances, FMCSA may issue temporary waivers (up to 90 days) or exemptions (up to two years) to allow drivers licensed in other countries to operate in the United States. These drivers are required to carry the waiver or exemption document with them.

Therefore, if the driver is not from Canada or Mexico, or does not have a waiver or exemption, he or she would have to obtain a US commercial driver license before working in the US.

Q2: A driver with residence in Mexico drives for a U.S. company. Does that driver need a state-issued commercial driver’s license?

A2: No, the driver may hold a valid license for the type of vehicle operated that is issued by the Mexico’s Secretaría de Comunicaciones y Transportes (SCT). Licensing is not dependent on place of employment.

However, to clarify further, the U.S. only recognizes the license (Licencia Federal de Conductor) issued by Mexico’s SCT (NOT a Mexican-state-issued license) as reciprocal for operations in the U.S.

Is hiring a foreign driver worth the effort?

After considering the complex process of obtaining a Green Card for a foreign driver, the likely question will be, is it really worth it? This depends on your goals, budget, and confidence in the applicant employee. This process may be a way to sponsor qualified friends or family from abroad that can work for your company as a driver, thus affording them opportunities that would not otherwise be available. In addition, for an employer with a significant need for qualified, long-term employees, the financial resources necessary to complete the process, and the capacity to wait for approval, the benefits can be well worth the effort to find a long-term employee.

When considering the viability of the Permanent Resident process, an employer should consult with an experienced immigration attorney. That attorney will be able to explain all the nuances of the process and help the employer to determine whether it’s the best strategy. That being said, there are several considerations the employer can begin with:

First, is there a legitimate need? As noted above, the employer must be able to show that it is unable to locate qualified and willing U.S. workers. While the general state of the industry will be helpful in establishing this, it is equally important for the employer to demonstrate that it is itself experiencing the difficulty in locating workers. Past failed hiring efforts, personnel turnover evidence, and evidence of lost profits can all be strong evidence of this.

Second, does the employer have the financial resources to complete the process? This will include the financial ability to pay at least the prevailing wage, and the ability and willingness to invest several thousand dollars into the application process for government filing fees and attorney’s fees.

Third, does the employer (and the perspective foreign employee) have the time to wait for a driver? As noted above, obtaining Permanent Residence is likely a long (at least 8-12 months) process. For employers who plan ahead and anticipate future needs, this may not be an issue.

Likewise, the perspective foreign employee must be able to remain available for the position throughout the process, and be able to commence work for the employer after receiving the Green Card. An employer should confirm the perspective employee’s willingness to remain available throughout the application process. The employer may consider preparing a contract that outlines the responsibilities of both the employer and the employee that result from the Green Card sponsorship.

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If after careful consideration an employer determines that it does want to proceed with the process, and if the employer and perspective employee succeed in obtaining a Green Card, then the benefits can be well worth the effort. The perspective employee will gain Permanent Residence in the United States and the employer will likely gain a permanent, qualified, and committed employee for its workforce.

Conclusion

Obtaining Permanent Resident status for foreign employees is a challenging undertaking–an employer must be committed to the time, expense, and effort required to complete the process successfully. However, for employers facing long-term labor shortages, such as those in the trucking industry, the process could lead to a qualified and committed workforce. In addition, due to various potential complications in the H-2B visa process, especially for over-the-road truck drivers, a Green Card may be the only option for an employer to bring foreign truck drivers to the United States.

The immigration attorneys at The Grady Firm are experienced in dealing with a wide range of employment-based immigration matters and can assist with developing a workable strategy for your employment needs.

About The Grady Firm, P.C.

The Grady Firm works with dynamic employers across the country to prepare successful employment-based applications, including Green Cards based on employment. In addition, we help individuals, families, employees, business owners, and investors obtain non-immigrant and immigrant visas (B-1/B2, H-1B, H-2B, L-1A, L-1B, O-1, TN, E-2, E-3), as well and Green Cards and citizenship based on family relationships, investment, or employment.

The Grady Firm is a partner firm to the California Employers Association and provides on-site training on government site visit preparation, and sexual harassment training in English and Spanish.

Click here to schedule a complimentary 15-minute consultation with The Grady Firm’s attorneys; call +1 (949) 798-6298; or fill out a Contact Request Form.

This article is for informational purposes only, and does not constitute legal advice or create an attorney-client relationship. This article does not make any guarantees as to the outcome of a particular matter, as each matter has its own set of circumstances and must be evaluated individually by a licensed attorney.

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