Posts Tagged ‘Department of Labor’

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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Posted in General, Scott Railton |