Labor Immigration Law

United States Labor Immigration Law News and Analysis

H-2A Articles

DOL Performance Report for 2009Q2

The Department of Labor (”DOL”) has released a quarterly report covering the second quarter of 2009 (ending on June 31, 2009) which report indicates the performance measurements for four categories of labor certifications performed by DOL:

H-1B Labor Condition Applications (”LCA”).  The target performance rate set by DOL is seven (business) days.  For the second quarter, the performance rate was 99.11% of the goal, meaning that DOL responded to nearly all  LCA applications within the mandatory seven days.  This however, reflects statistics from the old, pre-iCert, system which used to provide instant LCA certification.  Under the new iCert LCA system, the LCAs are reviewed manually and from our experience an LCA takes up to 7 business days to certify.  The iCert system went into effect on June 30, 2009.

PERM Labor Certifications.  The target performance rate is review within six months of filing of PERM.  Unfortunately, the reported rate of PERM certifications which fell within the target of six months is only 17%.  Although this is a slight increase compared to 2009Q1 performance rate of 11%, it is still a very low performance rate and confirms our experience from earlier this year that DOL takes upward of 9 months to certify PERM applications.  DOL’s explanation is that such increased processing time is due to increased integrity checks in light of declining economy and continued PERM filings for positions where there are U.S. workers available (for example, financial services).  DOL plans to institute a new electronic filing system for PERM labor certifications around July 1, 2010.

H-2A and H-2BThe performance target for H-2A is 15 business days while the performance target for H-2B is 60 days.  The on-target performance was 54% (increase from last quarter’s 38%) for H-2A and 87% (increase from last quarter’s 31%) for H-2B.  An important note is that the H-2B regulations were revised as of January 2009 and the numbers do not reflect properly the new H-2B rules.  It should be also noted that the H-2B program performance incrase is a seasonal occurrence and even taking into consideration this performance improvement, the overall performance is under the annual target.

Conclusion.  There seems to be increased delays overall in some categories.  Most troubling are the significant PERM delays.  We have written previously about the delays in PERM processing (which seem to be improving slightly) but  the PERM performance chart for the past eight quarters suggests that return to 6-month processing PERM is far.  Additionally, LCAs for H-1B applications now take up to seven business days which adds a week of processing to all H-1B applications.  For employers who are not part of the iCert system, there may be an additional 2-5 days iCert employer verification period.   As a result, we urge our clients to factor this processing time when planning business and employment decisions with respect to H-1B workers.

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Changes to the H-2A Program

USCIS announced last week changes to the H-2A program which changes would streamline the hiring process for temporary and seasonal agricultural workers.  The final rule is intended to facilitate the H-2A process for employers by removing certain limitations and to encourage lawful employment.

About the H-2A Program

The H-2A visa allows a foreign national entry into the U.S. for temporary or seasonal agricultural work. There are several requirements of the employer in regards to this visa. The H-2A temporary agricultural program establishes a means for agricultural employers who anticipate a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Currently in the United States there are about 30,000 temporary agricultural workers.

Major Changes to the H-2A Program

Among the major changes to the H-2A program are:

  • Relaxing the current limitations on H-2A employers to petition for multiple, unnamed agricultural workers;
  • Extending from 10 days to 30 days the time a temporary or seasonal agricultural worker may remain in the country following the expiration of his or her temporary H-2A stay;
  • Reducing from six months to three months the time an H-2A worker who has spent three years in the United States must reside and be physically present outside the United States before he or she
    is eligible to re-obtain H-2A status;
  • Allowing H-2A workers, who are changing from one H-2A employer to another H-2A employer, to begin work with the new petitioning employer upon the filing of a new H-2A petition, provided the new employer is participating in USCIS’ E-Verify program;
  • Prohibiting H-2A employers and recruiters from imposing certain fees on prospective H-2A workers as a condition of employment;
  • Requiring an approved temporary labor certification in connection with all H-2A petitions;
  • Requiring employers to notify USCIS when H-2A workers fail to show up for work, complete the work more than 30 days early, are terminated, or abscond from the worksite; and
  • Permitting the approval of H-2A petitions only for nationals of certain countries designated as
    important to the operation of the program and appearing on a list to be published annually in the Federal Register. The initial list of participating countries to be published simultaneously with
    this Final Rule includes Mexico, Jamaica, and 26 others. DHS may allow on a case-by-case basis worker from a country not on the list to be eligible for the H-2A program if such participation is in the U.S. interest.

The new rules have been transmitted to the Federal Register and will become effective 30 days after they have been posted.

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DOL Perm and H-2A/B Processing Statistics

The Department of Labor has released an interesting report regarding the number of PERM and H-2A/H-2B labor certifications.

For the period between October and December 2007, DOL received almost 20,000 PERM on-line submissions and slightly over 1,000 mail-in submissions. DOL completed work on 16,200 cases, of which 12,500 were certified (78% certification rate), 2,800 were denied (17%) and 800 were withdrawn (5%).

It is interesting to compare the approval rates for the Oct-Dec 2007 period with the historical certification rate since PERM started in March 2005. The historical overall certification rate is slightly above 78% which seems to indicate that the Oct-Dec 2007 certification rate was in line with historical averages.

Among other interesting findings in the report are the top five states of intended employment – California (23%), New York (10%), New Jersey (7%), Texas (7%) and Florida (6%). Few would be surprised that Indian nationals were the top nationality with 28% of all certified applications and computer software engineers were the top occupation with 17%.

In the H-2A/H-2B section of the report, it is worth noting that there was a significant increase in both the number of requested and certified labor certifications for both the agricultural and non-agricultural programs in FY07 compared to FY06. This seems to suggest that more employers are resorting to H-2 visas to obtain temporary labor. [See our recent post on H-2B cap.]

The relevant portion of the DOL report can be read here (PDF).

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