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H-1B Processing Changes Arriving Soon

Friday, September 6th, 2019 by W. Scott Railton

The U.S. Government seems focused on making this be the year it changes how things go with H-1B petitions. Overall, the changes are likely positive, but H-1B filers need to keep on top of these changes, as the timing and method of filings shall both be impacted.

1.  Proposed H-1B Lottery Registration Fee

U.S. Citizenship and Immigration Services is planning on conducting a lottery before April 1st, where employers vie for ticket to file each H-1B.  If chosen, the employer will then be permitted to file an application on April 1st, 2020, for positions starting no sooner than October 1st, 2020. The agency has proposed a fee of $10 for employers to register for the lottery. The introduction of the lottery will save money for all those who end up losing out in a lottery. It remains to be seen though how it will work timing-wise. It is not too early to be thinking about potentially sponsoring H-1B workers, particularly those who are current working in their optional practical training subsequent to their academic program.

Here is USCIS’s announcement on the lottery registration:

The Department of Homeland Security (DHS) today announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to pay a $10 fee for each electronic registration they submit to USCIS.

Because USCIS must expend resources to implement and maintain the H-1B registration system, and because USCIS operations are funded by fees collected for adjudication and naturalization services, DHS is proposing an appropriate, nominal fee for submitting H-1B registrations to recover those costs.

On Jan. 31, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period, unless we suspend that requirement. We also stated in that final rule that we were suspending the registration requirement for the fiscal year (FY) 2020 cap season, to complete required user testing of the new H-1B registration system and otherwise ensure the system and process work correctly.

In that final rule, DHS also reordered the cap selection process to increase the chance of selecting petitioners with a master’s degree or higher from a U.S. institution of higher education. Preliminary data shows that the number of petitions for U.S. advanced degree holders selected toward the FY 2020 numerical allocations increased by more than 11% over the year before.

H-1B visas allow skilled workers in certain specialty occupations to temporarily live and work in the United States.

Additional information on the proposed rule is available in the Federal Register. Public comments will be accepted from Sept. 4 (when the proposed rule publishes in the Federal Register) through Oct. 4.

 

2.  Department of Labor Changing Its On-Line Portals

The Department of Labor’s Office of Foreign Labor Certification is rolling out big changes for some its filings, including H-1Bs. Employers have long used the Department’s iCERT system to file the required labor condition application, which supports the H-1B petition. This month, the Foreign Labor Application Gateway will replace iCERT.  This makes me feel old, as I remember when iCERT was brand new.  These application used to be submitted by fax.  Here’s the Department of Labor’s announcement:

OFLC Announces Schedule for Electronic Filing of Labor Condition Applications in the Foreign Labor Application Gateway (FLAG) System

As part of the Department’s technology modernization initiative, the FLAG System has been developed to replace the legacy iCERT System, improve customer service, and modernize the administration of foreign labor certification programs through the Employment and Training Administration’s Office of Foreign Labor Certification (OFLC).

OFLC is making this public service announcement to alert employers and other interested stakeholders about implementation of its new FLAG System for the Labor Condition Application (LCA) programs covering the H-1B, H-1B1, and E-3 visa classifications.

Electronic Filing of Form ETA-9035E, Labor Condition Application for Nonimmigrant Workers

• Beginning September 16, 2019, the FLAG System’s LCA Program Module will be enabled and stakeholders will be able to begin preparing H-1B, H-1B1, and E-3 applications using the Form ETA-9035E. However, the FLAG System will not permit the submission of LCA applications until 12:00 p.m. Eastern Time on October 1, 2019.
• OFLC will continue to accept online submissions of the Form ETA-9035E through the iCERT System until 11:59 a.m. Eastern Time on October 1, 2019. The ability to submit LCA applications using the iCERT System will be deactivated at 12:00 p.m. Eastern Time on that date.
• OFLC will process all LCA applications submitted through the iCERT System, and stakeholders will be able to access their iCERT System accounts to check the status of applications submitted through the iCERT System

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Posted in General, Scott Railton |

Labor Certification and the Ten Certifications

Wednesday, September 4th, 2019 by W. Scott Railton

Labor certification is the process by which an employer recruits for a position, to determine if there are any available, willing, minimally qualified persons for the position. Fundamentally, the Department of Labor’s labor certification irotects the U.S. workforce first. It then secondly enables U.S. employers to petition for foreign workers, where no U.S. workers are available.

There are some occupations that the Department of Labor has long-determined there is a shortage of workers for, such as professional nurses and physical therapists. For these occupations, employers can forego most of the recruitment process. There are other occupations and areas where it is widely known that there is a shortage of available workers, such as is the case with physicians who are willing to working in a designated health professional shortage area.

Sometimes, a position is hard to fill because it requires very specific training or a large measure of industry-specific experience. The U.S. labor force and the employment needs to the U.S. are diverse, encompassing many factors.

The labor certification process is working well for employers. It takes an investment in time and money to pursue a labor certification and permanent residence for an employee, but this is one area of immigration where processing times are relatively good.

Each employer has to make ten attestations with a labor certification application. These attestations capture much of what is required of employers and the factors that need to be considered in pursuing an application. Here they are:

By virtue of my signature below, I HEREBY CERTIFY the following conditions of employment:

1. The offered wage equals or exceeds the prevailing wage and I will pay at least the prevailing wage.

2. The wage is not based on commissions, bonuses or other incentives, unless I guarantees a wage paid on a weekly, bi-weekly, or monthly basis that equals or exceeds the prevailing wage.

3. I have enough funds available to pay the wage or salary offered the alien.

4. I will be able to place the alien on the payroll on or before the date of the alien’s proposed entrance int o the United States.

5. The job opportunity does not involve unlawful discrimination by race, creed, color, national origin, age, sex, religion, handicap, or citizenship.

6. The job opportunity is not: a. Vacant because the former occupant is on strike or is being locked out in the course of a labor dispute involving a work stoppage; or b. At issue in a labor dispute involving a work stoppage.

7. The job opportunity’s terms, conditions, and occupational environment are not contrary to Federal, state or local law.

8. The job opportunity has been and is clearly open to any U.S. worker.

9. The U.S. workers who applied for the job opportunity were rejected for lawful job-related reasons.

10.The job opportunity is for full-time, permanent employment for an employer other than the alien.

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J-1 Waiver Season for Physicians Is Here

Monday, August 26th, 2019 by W. Scott Railton

J-1 Conrad waiver slots for physicians open up on October 1st. Health Departments around the country will begin accepting J-1 waiver applications under the Conrad program. Each state is allotted 30 spots, with the majority going to primary care physicians, who agree to work for three years in a health professional shortage area. In turn, their two year foreign residency requirement is waived. We routinely prepare these applications.

Rules vary state to state, although the federal government has minimum requirements. Washington State, where we are located, historically takes between six and twelve months to fill all of its spots. In recent years, Oregon has been filling its 30 spots faster. Alaska, Idaho, and Montana make limited use of the program, and so spots tend to remain open through the year. Some states though receive more than 30 applications on the first day the window opens.

Here are a few of the key rules for Washington State:

– Up to ten sponsorships are available for Specialists between October 1st to March 31st. Additional spots may be available after March 31st.

– Washington State also allows 10 non-designated FLEX waivers per year, with these slots opening on January 15th. FLEX spots allow certain physicians to work in areas that are not designated as health professional shortage areas, provided they are assisting populations that are underserved. For example, a Seattle specialist physician that sees patients from all over Washington (or multiple states) might qualify for a FLEX waiver.

– Washington State limits employers to three waivers each, prior to June 1st of the fiscal year.

– Applicants, including integrated health care systems in a single HPSA, are limited to a.) two sponsorships per practice location; b.) one hospitalist sponsorship per hospital; c.) no more than three sponsorships total across all practice locations in the HPSA between October 1st and May 31st; d.) and no more than three FLEX spots by a an applicant for a single county.

– Sponsors must show at least 15% of total patient visits are for Medicaid or other low income patients. This is up from the former 10% figure.

– Washington State requires that sponsors show at least six months of qualifying recruitment in the past 12 months in Washington State. This sometimes can be an obstacle to filing, and so it is important to evaluate what forms of recruitment have taken place, and for how long, for prospective waiver applicants.

We are available to consult with physicians and medical facilities, to discuss this process as well as other potential options for physicians. For better or worse, there are many rules in immigration specific to physicians, such as the Conrad and other J-1 waiver programs, H-1B requirements, and admission requirements. The processes also can involve multiple state and federal agencies. We know the way, and are happy to assist.

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U.S.-Canada Preclearance Agreement In Effect

Friday, August 16th, 2019 by W. Scott Railton

The Department of Homeland Security announced this week that a preclearance agreement is now in effect with Canada. This basically means that major Canadian airports will be on equal footing with land port of entries, legally speaking.

Expedited removal is now a tool airport CBP inspectors can use to find Canadians inadmissible and banned for five years, in cases of fraud and unlawful immigrant intent. Previously, this type of removal –basically a legal fiction with real impacts for someone not in the U.S.—only occured to someone presenting themselves for admission at a land port of entry, or when illegally seeking entry outside a port.

There is very limited recourse for an expedited removal order. In clear cases of error, sometimes they can be overturned. There is also a waiver process, but this usually works best after some time has passed. The criticism of expedited removal is it leaves no real route for appeal: CBP can be judge, jury, and executioner, so to speak, when they apply this measure. Sometimes agents have been known to be a bit too zealous in lowering this boom.

When I testified in the Canadian Senate in 2018 on marijuana legalization, some Senators had new reservations about their passage of the preclearance bill. There have been situations, particularly where someone has already been denied entry once, where I’ve felt better having them seek entry anew at an airport than at a land port of entry, just so expedited removal is not a consideration.

The preclearance rule will also possibly lead to joint operations at smaller ports of entry, such as can be found in rural border crossings. This can save money and lead to efficiencies, though one has to wonder about the sharing of information.

Here is the full announcement:

United States and Canada Implement Preclearance Agreement
Release Date:
August 15, 2019

WASHINGTON, D.C. – The U.S. Department of Homeland Security announced today, in partnership with the Public Safety and Emergency Preparedness Canada, the implementation of an agreement to improve mutual security and expedite lawful travel through preclearance for travelers and their accompanying baggage on certain transports. The collaboration is articulated in the Agreement on Land, Rail, Marine, and Air (LRMA) Transport Preclearance between the Government of the United States of America and the Government of Canada, which supersedes the previous 2001 U.S.-Canada Agreement on Air Transport Preclearance, and expands upon the two countries’ partnership.

Preclearance is the process by which officers stationed abroad inspect and make admissibility decisions about travelers and their accompanying baggage before they leave a foreign port, simultaneously increasing efficiency and security. The LRMA provides the legal framework and reciprocal authorities necessary for U.S. Customs and Border Protection (CBP) and the Canada Border Services Agency to carry out security, facilitation, and inspection processes in the other country.

“Preclearance strengthens economic competitiveness and mutual security, and benefits travelers by expediting their clearance into the U.S. before they ever leave Canada,” said Acting Secretary Kevin K. McAleenan. “This agreement provides the opportunity for CBP to build on six decades of successful operations and, for the first time, to conduct full preclearance in the rail, ferry, and cruise ship environments. This achievement is important for the Department’s security objectives and is another example of just how close the U.S. – Canada relationship stands.”

CBP currently conducts preclearance operations at eight Canadian airports: Calgary, Edmonton, Halifax, Montreal, Ottawa, Toronto, Vancouver, and Winnipeg. CBP officers also conduct immigration pre-inspection at multiple locations in British Columbia in the rail and marine modes; these locations will have the opportunity to convert to full preclearance, per the terms of the Agreement.

“The new Canada–U.S. Preclearance Agreement is now in force, creating new opportunities in all modes of transportation in both Canada and the United States,” said the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness. “Expanding preclearance makes travel faster and bolsters trade, while better protecting our rights.”

As the Agreement is fully reciprocal, in addition to the potential expansion of CBP preclearance operations in Canada, the Agreement permits Canada to pursue preclearance operations in the United States. This agreement also enables exploration of co-location at small and remote ports of entry and includes additional tools and authorities to help enforce immigration, customs, and agriculture laws, facilitate lawful travel, and ensure officer protection and accountability.

The LRMA was signed by the U.S. Secretary of Homeland Security and Canadian Minister of Public Safety and Emergency Preparedness on March 16, 2015, fulfilling a commitment of the Beyond the Border Action Plan (Beyond the Border Action Plan). The U.S. Congress passed the necessary supporting legislation in December 2016 and Canada’s Parliament did so in December 2017. Canada published their required implementing regulations in June 2019, paving the way for entry into force following an exchange of Diplomatic Notes today.

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Posted in General, Marijuana and Immigration, Scott Railton |

USCIS Announces Final Rule Enforcing Long-Standing Public Charge Inadmissibility Law

Monday, August 12th, 2019 by W. Scott Railton

USCIS announced today the upcoming publication of a final rule on public charge requirements for immigration purposes. “Rule” really misstates things, as the proposed rule change will weigh in at over 800 pages. What does this mean?

In a few words, immigration and naturalization are getting harder. For some, it will be because they can’t reach the new heightened standards for proving that their immigration will not become a burden on U.S. taxpayers. For all, it will mean the application process will become that much more burdensome, as applicants have to overcome red tape requirements to prove their eligibility to immigrate or naturalize.

When a new rule with this level of complexity rolls out, there is a learning curve for the government decision-makers as well as for the applicants and their advisors.  Rarely do things become more clear; usually, the rules beget further questions and administrative burdens.

Restricting immigration has proudly been the cornerstone of this Administration’s agenda. This new rule will give officers at USCIS, and perhaps CBP and the State Department, greater ability to refuse immigration benefits. Immigrant advocates are also saying this rule will deter noncitizens from seeking all manner of benefits, in fear of hurting their chances to immigrate. I anticipate the rule or some part of it will soon be challenged in federal court. There will be other unintended consequences, surely, due to the breadth of its potential impact.

This is headline news, and much more will be written and said on this. For now, here’s the announcement from USCIS:

USCIS Announces Final Rule Enforcing Long-Standing Public Charge Inadmissibility Law

Regulation promotes self-sufficiency and immigrant success

WASHINGTON — Today, the U.S. Department of Homeland Security (DHS) announced a final rule that clearly defines long-standing law to better ensure that aliens seeking to enter and remain in the United States — either temporarily or permanently — are self-sufficient and rely on their own capabilities and the resources of family members, sponsors, and private organizations rather than on public resources.

This final rule amends DHS regulations by prescribing how DHS will determine whether an alien is inadmissible to the United States based on his or her likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The final rule addresses U.S. Citizenship and Immigration Services (USCIS) authority to permit an alien to submit a public charge bond in the context of adjustment of status applications. The rule also makes nonimmigrant aliens who have received certain public benefits above a specific threshold generally ineligible for extension of stay and change of status.

“For over a century, the public charge ground of inadmissibility has been part of our nation’s immigration laws. President Trump has delivered on his promise to the American people to enforce long-standing immigration law by defining the public charge inadmissibility ground that has been on the books for years,” said USCIS Acting Director Ken Cuccinelli. “Throughout our history, self-sufficiency has been a core tenet of the American dream. Self-reliance, industriousness, and perseverance laid the foundation of our nation and have defined generations of hardworking immigrants seeking opportunity in the United States ever since. Through the enforcement of the public charge inadmissibility law, we will promote these long-standing ideals and immigrant success.”

DHS has revised the definition of “public charge” to incorporate consideration of more kinds of public benefits received, which the Department believes will better ensure that applicants subject to the public charge inadmissibility ground are self-sufficient. The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). The rule further defines the term “public benefit” to include any cash benefits for income maintenance, Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), Supplemental Nutritional Assistance Program (SNAP), most forms of Medicaid, and certain housing programs.

The regulation also excludes from the public benefits definition: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.

This rule also makes certain nonimmigrant aliens in the United States who have received designated public benefits above the designated threshold ineligible for change of status and extension of stay if they received the benefits after obtaining the nonimmigrant status they seek to extend or from which they seek to change.

Importantly, this regulation does not apply to humanitarian-based immigration programs for refugees, asylees, Special Immigrant Juveniles (SIJs), certain trafficking victims (T nonimmigrants), victims of qualifying criminal activity (U nonimmigrants), or victims of domestic violence (VAWA self-petitioners), among others.

This rule also explains how USCIS will exercise its discretionary authority, in limited circumstances, to offer an alien inadmissible only on the public charge ground the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds and goes into effect at 12:00 a.m. Eastern on Oct. 15, 60 days from the date of publication in the Federal Register. USCIS will apply the public charge inadmissibility final rule only to applications and petitions postmarked (or, if applicable, submitted electronically) on or after the effective date. Applications and petitions already pending with USCIS on the effective date of the rule (postmarked and accepted by USCIS) will be adjudicated based on the 1999 Interim Guidance.

USCIS will provide information and additional details to the public as part of public outreach related to the implementation of this rule. In the coming weeks, USCIS will conduct engagement sessions for the public and other interested groups to ensure the public understands which benefits are included in the public charge inadmissibility rule and which are not.

For more information on USCIS and its programs, visit our website at uscis.gov or follow us on Twitter, Instagram, YouTube, Facebook and LinkedIn.

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I-9 Workshop on August 20th

Wednesday, July 31st, 2019 by W. Scott Railton

The attorneys at Cascadia, in coordination with the Bellingham Chamber of Commerce, will be presenting an I-9 Workshop on August 20th. The workshop is free for anyone to attend. It will take place at the Bellingham Regional Chamber of Commerce, at 119 N. Commercial St., Ste 110, Bellingham. The workshop will be from 8:00 to 9:30 AM.  Here is a link to the Chamber’s announcement.

The purpose of the workshop is to assist businesses and their HR teams with worksite compliance for immigration issues, with a focus on I-9 completion and management, social security no-match letters, and ICE enforcement actions.

In the past year, we’ve seen an uptick in the number of businesses that receive Notices of Inspections for their I-9s. ICE can demand to see a company to produce all their I-9 records within 3 business days, which can surprise businesses sometimes. As it is said, an ounce of prevention is worth a pound of cure.

We expect that attendees will be able to walk away from the workshop better prepared to address workplace compliance issues at their businesses.

We are also available to discuss worksite compliance concerns with businesses, by appointment.

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Expanded Use of Expedited Removal

Tuesday, July 30th, 2019 by W. Scott Railton

Last week the Administration announced it is expanding the use of expedited removal. Expedited removal is a form of deportation which does not require an administrative hearing or other judicial review. Authorized by section 235 of the Immigration and Nationality Act, expedited removal allows CBP and ICE agents to deport persons who enter or seek to enter the United States without proper documents or by fraud. The “expedited” part of the removal basically means that low-level officers in the government can make a decision on removal, without review by a judge.

Expedited removal has been available in certain cases since 1997. This most recent expansion of policy applies to noncitizens, anywhere in the United States, if they cannot prove continuous physical presence for the past two years. Previously, the time frame was 14 days and the geographic area was limited to within 100 miles of the Canadian and Mexican borders. Unaccompanied minors are not impacted by the new rule, and persons can still claim relief if they can articulate a credible fear of return to their home country.

Most of the news about this policy has focused on undocumented who are inside the United States. Many are advising that undocumented persons gather up evidence to prove they’ve been in the United States for more than two years, in case they encounter an ICE agent. Such preparations may be sufficient to satisfy an officer, on the spot, that expedited removal is not available.

Most of our expedited removal cases arise at the U.S.-Canada border, where there are misrepresentations while seeking entry. We expect to see expedited removal to be used more frequently locally, in light of the Administration’s announcement. The typical case is one where someone says they are seeking entry for one purpose, when in fact they are seeking entry for another purpose, or several unrelated purposes.

The application of a fraud finding can be complicated sometimes, because there are sins of commission and omission. I expect the border will be taking a more expansive view of what constitutes fraud, in the exercise of its expedited removal powers. The trouble with this is there is no administrative or judicial review of such a decision.

If a person is placed in expedited removal, they are barred from seeking re-entry for at least five years, unless they obtain the consent of the U.S. government to seek entry again. There are nonimmigrant waivers available, but the likelihood of success of an application will depend on the merits of the application. There are substantial fees and a processing times to consider as well.

Sometimes it is possible to challenge the actual expedited removal order, through communications with agency leadership. Make no mistake—that is usually a tough road—but I supervisors will reconsider a matter, if a decision is clearly erroneous.

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Posted in General, Marijuana and Immigration, Scott Railton |

CBD and Immigration

Friday, July 19th, 2019 by W. Scott Railton

I’ve had many questions in the past few months about cannabidiol (CBD) and immigration. For now, CBD needs to be treated the same as cannabis. At least, that seems to be the way the U.S. immigration authorities are dealing with it.

Suddenly, it seems CBD is everywhere. Local pharmacies sell it. Cannabis retailers sell it. Some grocery stores. It comes in many forms: oils, skincare products, chocolates, pills, drops, bath salts, creams–the list seems endless. The market is booming. I hear that elderly persons like these products for pain relief and sleep. I’ve spoken with physicians, who have no problem recommending its use. The science is playing catch up, as is the law. Its a very odd situation, from a legal standpoint.

The U.S. Food and Drug Administration says it “recognizes the significant public interest in cannabis and cannabis-derived compounds, particularly CBD.” However, the agency is still studying CBD, and other than one prescription product for epilepsy, it has not approved CBD products. In a recent statement, the FDA said, “We are aware that there may be some products on the market that add CBD to a food or label CBD as a dietary supplement. Under federal law, it is currently illegal to market CBD this way.”

The 2018 Farm Bill removed hemp from the definition of marijuana in the Controlled Substances Act. Hemp is defined as cannabis and cannabis derivatives with .3% or less concentrations of THC, the psychoactive component of cannabis.  The chemistry gets interesting here, as CBD is often a “hemp-oil” or hemp-derived product. It is possible that a manufacturer can produce CBD products from hemp–and it happens all the time. However, the FDA has not caught up the manufacturing sector to implement a regulatory system to do this in compliance with the Controlled Substances Act. The Drug Enforcement Agency has in the past found that CBD products do violate the CSA, and so until the FDA approves such products, CBD products are going to be considered illegal, if push ever comes to shove.

However, the Federal Government seems to look the other way. CBD sales are enabled by state legalization, and intrastate marketing of the products does not seem to run into any federal law issues. Of course, right now, more than half the states have some form of legalization. At least 15 states now have medical only legalization, which would include CBD.

Our interest here is immigration. I don’t have anything favorable to report. From what I’ve seen, immigration authorities are still treating CBD the same as marijuana. I’ve seen individuals lose their visas to come to the U.S. where they have products which have “the attributes of marijuana”.  I’ve seen persons denied trusted traveler status for admitting to using CBD.  I’ve inquired with the Department of State about foreign investment in CBD-related businesses, and the government will only say it takes each case on its merits.

I think it is risky to cross the border with a CBD product in a vehicle, or luggage, as applicable. Marijuana confiscation at the border typically leads to a $500 Customs fine. Admissions can be more problematic, as some admissions can lead to a life-time bar. Similarly, persons working in the U.S. industry are at serious risk for future admissibility.

In the face of adverse consequence, the best legal recourse will depend on the facts. Sometimes legal arguments can be presented. Sometimes waivers are available.

The point of this post is to stress that CBD is not a safe or legal substance for noncitizens, at least at this time. In time, I expect adequate regulation will come into existence for hemp-derived products, but right now it seems the immigration authorities are taking a dim view of CBD.

 

 

Posted in General, Marijuana and Immigration, Scott Railton |

Labor Certification and Permanent Residence

Wednesday, July 17th, 2019 by W. Scott Railton

Immigration is very challenging these days, for numerous reasons. One thing that seems to be working fairly well, with surprisingly favorable timelines, is the Department of Labor’s labor certification system. We are seeing labor certifications adjudicated in a matter of months.  With a labor certification approval, an employer can sponsor an individual for permanent residence. If the visa category is current, which is often the case, permanent residence can be procured in less than a year in some cases. While not overnight, that is relatively fast these days.

The labor certification process requires that the employer test the U.S. labor market to see if there is a minimally qualified, willing, and available U.S. worker for the position.  The recruitment process is largely mandated by regulation, typically involving two Sunday advertisements in a newspaper of general circulation, a state workforce posting for 30 days, a worksite posting, and three other options selected from a list of ten alternatives.  The process is highly regulated, and is fundamentally designed to protect the U.S. labor market. If a minimally qualified worker is identified through recruitment, and is willing and available to take the position, the labor certification process cannot go forward.  However, employers willing to consider this process usually know that this is unlikely, or they wouldn’t be considering this path in the first place.

The whole recruitment process can take three to five months.  These days, the timing is largely dependent on how fast the Department of Labor can provide a prevailing wage determination. (Employers must agree to pay at least the going rate for the position–another labor market protection).  Once filed, the labor certification may be adjudicated in two to three months.  If approved, the employer can then file with the Department of Homeland Security to sponsor the alien worker, and take advantage of the premium processing 15 day adjudication timeline. The final step in the process to green card will either be an adjustment of status application or a consular processing appointment.  Adjustments of status can take over a year right now, but it really varies on location.  Consular processing appointments vary too, but some are taking less than six months.

The labor certification route is something to be considered, for valuable noncitizen employees.  For example, this might be a good path for a STEM employee on optional practical training, where the H-1B lottery has not worked out.  It is also an alternative to some merits-based approaches to permanent residence, which are frequently challenged these days. I have been greatly impressed by how well labor certification works for employers these days, in some cases. It is no secret that there are many sectors experiencing labor shortages. The labor certification process is meant to assist employers when that is the case, while still protecting the U.S. labor market.

 

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Washington State Department of Licesning On Use of Facial Recognition Technology

Tuesday, July 9th, 2019 by W. Scott Railton

The Washington Post and New York Times recently ran stories concerning the use of facial technology to identify persons via the state driver’s license databases.  Washington State’s Department of Licensing has issued a press release, basically suggesting this is, dare I say, fake news. Here is what the Department of Licensing says:

DOL statement regarding facial recognition technology
July 8, 2019

July 8, 2019 For Immediate Release.

News Reports – ICE and the FBI using facial recognition technology to scan state driver’s license databases.

Statement from Department of Licensing Director Teresa Berntsen:

“National news reports about federal law enforcement and immigration officials’ use of state facial recognition databases has led to a high level of misunderstanding and confusion about how our state Department of Licensing protects this data. Our DOL has implemented strict standards to ensure data is not released to any law enforcement entity for immigration purposes or without a judicial court order or subpoena. There is no external access to the Facial Recognition System. System access is limited to very few specially trained DOL staff. We take very seriously our responsibility to protect the data and information of all Washingtonians.”

Background

The Washington Post reported ICE and the FBI using facial recognition technology to scan state driver’s license databases, including photos of legal residents and citizens. The Department of Licensing does not provide access to our Facial Recognition System to local, state, or federal law enforcement entities. They must provide the agency with a court order signed by a judge.

The New York Times states “agents authorized administrative subpoenas of the Department of Licensing to conduct a facial recognition scan of all photos of license applicants, though it was unclear whether the state carried out the searches.” The agency received 53 requests through court order or subpoena since 2013. Thirteen of those were federal requests. None have been received from 2017 to present. The remaining 40 were from local and state law enforcement entities.

Federal requests include:

One – U.S. Department of Justice
Two – Federal Bureau of Investigation
Four – Department of Homeland Security/Immigrations and Customs Enforcement
Six – U.S. Drug Enforcement Administration

If a match was found through any request during this time, DOL would provide limited identity information.

DOL’s Use of Facial Recognition Technology

KUOW ran the headline “ICE uses Washington driver’s licenses to hunt immigrants for deportation, researchers say.” This is incorrect. No entity has access to DOL’s facial recognition system. They would provide a photo and DOL would conduct the research.
Law enforcement entities have no access to “mine” DOL’s state driver’s license databases using facial recognition technology.
As of January 2018, all requests must be court ordered.

DOL’s Facial Recognition Process

After receiving a court-ordered subpoena, DOL performs a search by comparing the photo provided by a law enforcement entity with DOL’s database. If a match occurs between the photo provided by the entity with a photo in DOL’s database, DOL provides the individual’s first, middle, and last name, date of birth, and ID or driver license number.
The Department of Licensing does the research. There is no direct external access to the facial recognition system. System access is limited to very few specially trained DOL staff.

Immigration and Citizenship Status

The Department of Licensing does not collect information regarding a person’s immigration or citizenship status.
The Department of Licensing does not collect place of birth.
The Department of Licensing does not provide Social Security numbers.

Governor’s Executive Orders

The Department of Licensing is committed to following the Governor’s Executive Order 17-01 Reaffirming Washington’s commitment to Tolerance, Diversity and inclusiveness.
We fully comply with Executive Order 16-01, Privacy Protection and Transparency in State Government. We only collect information that is necessary to perform our agency duties to establish identification and driving privileges.

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