Labor Immigration Law

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of May 31, 2010.  They are as follows:

• Regular processing: August 2009.  DOL is processing PERM applications with priority dates in August of 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: May 2008.  This is no movement in this category in comparison to prior months.   Accordingly, audited PERM applications are processed approximately 24 months after the initial PERM was filed and the priority date established.
• Appealed applications: December 2007.  There is some delay in this category in comparison to prior months.   Accordingly, PERM appeals are processed approximately 29 months after the initial PERM was filed and its priority date established.

We continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcement.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of April 30, 2010.  They are as follows:

• Regular processing: July 2009.  DOL is processing PERM applications with priority dates in July of 2009.  This suggests that there is very slight forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: April 2008.  The processing time has not changed over the past few months.  Accordingly, audited PERM processing times remain at approximately 24 months.
• Appealed applications: November 2007.  There is no movement this month in this category over the past few months.  Accordingly, PERM appeals take approximately 28 months.

We continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcement.

On March 25, 2010, the Department of Labor (“DOL”) held a stakeholders telephone conference to discuss DOL operations generally, and address PERM, iCERT prevailing wage and other specific areas.  We are happy to share some interesting pieces of information from DOL.

PERM Processing.  With respect to PERM processing, DOL has made efforts to decrease its PERM backlogs and try to reduce processing times to 8-9 months.  DOL is temporarily assigning PERM applications to adjudicators in Washington, DC, Chicago and to additional staff in Atlanta.  As a result, significant PERM processing time improvements are expected.  Our office has received recent PERM applications certified 7 months after filing.

PERM Recruiting.  DOL indicated that they do not expect a change in the pre-filing PERM requirement of advertising in a newspaper of general circulation in the area of intended employment.   The concern is that few employees seek employment in newspapers as the Internet has almost entirely replaced newspapers in this regard and also that some geographic areas simply do not have a Sunday newspaper of general circulation.  Despite these concerns, DOL has no plans to eliminate the Sunday recruitment requirement.

iCert Prevailing Wage.  Starting January 1, 2010, the iCert system is the exclusive system for requesting prevailing wage determinations which were previously handled by the State Workforce Agencies.  We have reported previously on the long iCert prevailing wage processing times.  In response to concerns about the long prevailing wage processing times, DOL has reiterated that it has previously warned employers that a 60-day processing window should be expected and planned for.  Although DOL indicated that they will try to add more resources to the prevailing wage review process, they expect that the prevailing wage determinations will take up to 60 days.  Requests pending for more than 60 days should be reported to DOL.

In November of last year and in February of this year, we wrote about a temporary change USCIS made with respect to H-1B petitions filed without certified Labor Condition Applications (LCAs).   The reason for this temporary change in policy was to accommodate LCAs which have been delayed past the 7-day LCA processing window.   Pursuant to the temporary policy, H-1Bs could be filed with evidence of filed LCA which shows that the LCA has been pending for more than 7 business days.

USCIS has refused to expand the temporary policy and as a result, effective March 10, 2010, USCIS will no longer accept H-1B petitions filed without a certified LCA.    All H-1Bs filed on or after March 10, 2010, must be accompanied by a certified LCA or will be rejected.

Effective January 1, 2010, the Department of Labor (DOL) centralized all prevailing wage determinations needed in connection with certain programs – PERM, H-1B, H-2B and E-3.   All prevailing wage requests now must be submitted to DOL for processing and not to the state workforce agencies, as it was done before.

Because DOL was not ready to accept electronic submissions on January 1, it announced that it would accept paper prevailing wage submissions until the iCert system is modified to accept prevailing wage requests on Form 9141.   As a result, many prevailing wage requests from early this year were submitted via mail.  On or about January 15, 2010, DOL launched the online prevailing wage request form and is now accepting online submissions.

Prevailing Wage Determinations Currently Take Three to Four Weeks

Unfortunately, delays in the processing of the prevailing wage requests are widely reported.  In many instances, paper request forms submitted before January 15th took one or two weeks to be entered into the system and confirmed as submitted.  We are seeing that it currently takes between three and four weeks for DOL to provide prevailing wage determinations.

In communications related to the new system, DOL has indicated that prevailing wage determinations may take up to 60 days.  This is in a sharp contrast to the pre-January 1, 2010 system where state workforce agencies were often able to provide prevailing wage determinations within 1-2 days.

We hope that DOL is experiencing adjustment issues to the new system and once system glitches are ironed out, DOL will staff the prevailing wage determination bureau properly so that determinations can be issued promptly.   To avoid delays in H-1B petitions associated with prevailing wage determinations, our office uses alternative prevailing wage surveys.  However, for PERM labor certification applications, the new prevailing wage determination system adds one to two months of additional PERM preparation time.

The American Immigration Lawyers’ Association (AILA) has provided some guidance and information from Customs and Border Protection (CBP) at the Newark, New Jersey airport.

Background

Starting in December of 2009, our office has been receiving alerts from current and prospective clients about a number of incidents where holders of valid H-1B stamps were questioned and, in some cases, offered the opportunity to withdraw their request for admission into the U.S. or be subject to expedited removal proceedings;  in many cases, such H-1B holders were not admitted into the U.S. and sent back to their home country and have had their H-1B visas cancelled.

Due to the lack of information from CBP and the seriousness of the situation, a number of misleading and sometimes false rumors have began circulating among communities of H-1B holders on the Internet.    We hope that this alert will provide helpful information and understanding of what happens at Newarj, NJ airport and what can be done about it.

USCIS/ICE Employer Fraud Investigations Cause Scrutiny of H-1B Employees

CBP has confirmed that at least several of these cases involved companies which were under investigation by Immigration and Customs Enforcement (“ICE”) and/or USCIS for ongoing H-1B program fraud.  CBP noted that they use as much advance information as possible to target specific individuals who warrant additional inspection.  CBP also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on “the totality of the circumstances and reviewed on a case by case basis.”

In the Newark enforcement actions, CBP Newark worked closely with USCIS – Fraud Detection and National Security (“FDNS”) and the Department of Labor – Office of Investigations.  CBP stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed.  CBP confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

Newark, NJ Airport New Policy to Verify L-1 and H-1B Employees

CBP has also announced that the Newark, New Jersey airport has instituted a new policy which involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders.  Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

Public Information May be Consulted During or After Inspection

Employers should be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices –

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Conclusion: Proper Pre-Travel Preparation is Essential

It should be noted that although the recent news were linked with Newark, New Jersey airport, CBP may expand its policy and enforcement to other airports at any time.  In light of these developments, it becomes increasingly important for holders of H-1B and L-1 visas to prepare well for their return trip into the U.S., regardless of the port of entry they use to enter the U.S.

We advise all of our clients to thoroughly prepare for their trip to the U.S. and their inspection upon application for admission.  H-1B and L-1 visa holders should review all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer.  In addition, the H-1B or L-1 employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation.  Finally, employers should ensure that public information, such as websites and/or other materials, may be consulted by CBP agents to determine whether a particular H-1B or L-1 petition is valid.

We wrote in late October and early November of 2009 about the USCIS Ombudsman’s recommendation that USCIS (1) accept H-1B filings without a certified LCA but with a proof of filed and pending LCA and (2) to excuse late H-1B filings where the delay in filing was caused by pending LCA or employer’s Federal Employed Identification Number (“FEIN”) verification.

In November of 2009, USCIS agreed to temporarily (for a period of 120 days) create a policy in line with the USCIS Ombudsman’s recommendations.   In a Memorandum dated as of January 28, 2010, by Alejandro Mayorkas addressed to the USCIS Ombudsman, USCIS announces that it will make permanent policy changes in line with the October 2009 Ombudsman recommendations.

USCIS Will Accept H-1B Petition With Evidence of Initial LCA Filing

H-1B petitions will be accepted with evidence of initial LCA filing if the H-1B has been filed at least 7 calendar days after the LCA was filed with DOL.   The petitioner must include a copy of the LCA submission’s email confirmation as evidence.

Petitioners who seek to use this H-1B filing procedure must wait until they receive an RFE before they can submit the already DOL-certified LCA in support of the H-1B filing.  The certified LCA must be the same LCA which was filed with the original H-1B petition, unless the petitioner provides an LCA which was certified prior to the submission of the H-1B petition.

Late Filings Due to LCA/FEIN Verification Delays Should Be Excused

In addition, USCIS has confirmed that it will continue to excuse late H-1B filings under 8 C.F.R. 214.1(c)(4) or 8 C.F.R. 248.1(b) when the delay in filing of the H-1B petition requesting an extension of H-1B stay or change of status to H-1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to employer’s FEIN verification issues.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of December 31, 2009.  They are as follows:

• Regular processing: March 2009.  DOL is processing PERM applications with priority dates in March of 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: December 2007.  This is movement forward of two (2) months in comparison to the November 31, 2009 report, resulting a net additional gain of one (1) month for audited PERM applications.  Accordingly, audited PERM processing times should be approximately 24 months.
• Appealed applications: August 2007.  There is no movement this month in this category in comparison to November 31, 2009, resulting a net additional delay of one (1) month for appealed PERM applications.  Accordingly, PERM appeals take approximately 28 months.

We continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcement.

The Department of Labor (“DOL”) has provided an update on the current PERM processing dates as of November 31, 2009.  They are as follows:

• Regular processing: February 2009.  DOL is processing PERM applications with priority dates in February 2009.  This suggests that there is certain forward movement for regular PERM processing.  Accordingly, regular PERM processing times should be approximately nine (9) months.
• Audited applications: October 2007.  This is movement forward of two (2) months in comparison to the July 31, 2009, resulting a net additional delay of two (2) months for audited PERM applications.
• Appealed applications: August 2007.  This is movement forward of only one (1) month in comparison to July 31, 2009, resulting a net additional delay of three (3) months for audited PERM applications.

Based on these numbers, we can conclude that while the August-November 2009 period brings certain forward movement for regular PERM applications, it still takes approximately 9 to 10 months for a regular PERM case to be certified.  With respect to audited or appealed cases, the processing times indicate additional delay.

Two weeks ago we wrote about the USCIS Ombudsman recommendation to modify the LCA/H-1B filing process to avoid negative consequences associated with delayed LCAs.

As a response, USCIS just announced a temporary change in policy pursuant to which it will temporarily accept H-1B petitions filed without Labor Conditions Applications (LCA) that have been certified by the Department of Labor.  USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010.  However, USCIS will only accept such H-1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of DOL’s email giving notice of receipt of the LCA.

This does not mean that H-1Bs will  be approved without certified LCAs.   USCIS will still require certified LCA to accompany the H-1B petition before it can be approved.   As a result, petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition. USCIS will give petitioners a period of 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs.