Posts Tagged ‘DOL’

The Impact of the U.S. Federal Government Shutdown on Immigration

Wednesday, December 26th, 2018 by W. Scott Railton

The U.S. Federal Government is in shutdown mode, due to a budget fight over President Trump’s desire to build a wall on the southern border. Brinkmanship has become increasingly common in D.C., and the taxpayers usually pay the price. Shutdowns are expensive–agencies function like computers with malware installed, if at all; businesses and personnel are harmed; and there are inherent costs in shutting down and starting up anew agency work.  Thankfully, the term “shutdown” is a misnomer, as many “essential” services continue on.

Immigration involves several federal agencies and bureaus, and so impacts vary overall. Our clients are most concerned about applications for immigration benefits, which are principally handled by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State. Because these applications are supposed to be fee-supported, impacts of the shutdown tend to be collateral impacts. The government will continue to adjudicate most applications. Below, I’ve pasted a press release from USCIS on how they’ll handle things.

Due to a peculiarity in funding, the Department of Labor (DOL) will continue to adjudicate matters, including PERMs, prevailing wage requests, and labor condition applications.

The Immigration Courts were initially closed. The Executive Office of Immigration Review is moving forward with detained cases as scheduled, and are rescheduling non-detained cases.

The U.S. Customs and Border Protection, which runs the border, is considered “essential” business, and so they will carry on through the shutdown. However, the Nexus office is not processing new applications, to the misfortune of some.

Ironically, E-Verify and related programs are shut down, which unfortunately is causing headaches for some employers who are required by government contract to use E-Verify.

Department of Justice civil litigation is curtailed or postponed, to the extent possible. Litigation is deadline driven, and so as the shutdown continues, this creates issues for judges and private litigants.

Here’s a memo from USCIS on the shutdown:

Lapse in Federal Funding Does Not Impact Most USCIS Operations

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’s fee-funded activities. Our offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications for benefit requests, except as noted below.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

  • EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program). Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.
  • E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.
  • Conrad 30 Waiver Program for J-1 medical doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
  • Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.

 

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Highly Anticipated PERM Modernization Rule Withdrawn

Monday, December 19th, 2016 by W. Scott Railton

The Department of Labor reports that it has withdrawn its Notice of Proposed Rulemaking and Schedule A Request for Information from OMB/OIRA review.

The PERM rules are in great need of revision and modernization. The most common complaint that we hear, and which was articulated in stakeholder meetings, is that the required job postings in Sunday newspapers of general circulation is not reflective of current recruiting practices. Newspapers in major metropolitan areas charge thousands of dollars for two well-written Sunday postings.

The final PERM rules were published on December 27, 2004, and PERM program was launched on March 28, 2005. Since that time, any kinks in the system have been worked out through the dissemination of FAQ memos, as well as BALCA decisions. The memos and decisions frequently focus on sections of the ETA-9089 form, and the ways to properly fill out the form.

In the decade that has passed since the implementation of the PERM rules, the world of business and recruiting has changed. Modernization of the PERM process is sorely needed, for fairness, to speed up the processes, and to lower the costs.

We will have to wait and see how things will change with the incoming Trump Administration and the PERM system. The implementation of any new rule will have to go through the full OMB review and rule-making process.

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H-1Bs and Labor Certifications Delayed By Government Shutdown

Wednesday, October 2nd, 2013 by W. Scott Railton

On October 1st, the U.S. Government went into shutdown due to the inability of Congress to agree on a budget. Nonessential employees are being furloughed until the matter is resolved. This is front page news in the U.S., and everyone hopes the disputes are resolved as soon as possible.

In the meantime, here’s a quick summary of how the shutdown affects immigration petitioners:

1. The Department of Labor’s Office of Foreign Labor Certification (OFLC) will not be accepting or processing applications. Specifically, this means labor condition applications, which are a required element of H-1B petitions, labor certifications, and prevailing wage determinations, are all on hold. This seems to be the most immediate impact of the shutdown for immigration petitioners, as this development could skew timelines, particularly related to H-1B renewals and the need to timely file a labor certification.

Here’s what the DOL says:

OFLC functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

2. All USCIS offices are open and applications continue to process, at least for now. USCIS handles all benefits petitions, such as naturalization applications, all work authorization types, and permanent resident applications.  The office continues to be open because activities are largely funded by fees paid by applicants.

3. By and large, U.S. Customs and Border Protection continues to operate. All ports of entry are open, and so far there are no exceptional delays. The Admissibility Review Office, which adjudicates U.S. waivers, remains open and applications will continue to be adjudicated. The CBP website will not be updated, and approximately 6000 CBP workers will be furloughed.

4. The Department of State will continue operations and visa adjudications as routine for now, but the agency is monitoring the possible impact of the shutdown closely.  Now, in 2011, when the government was facing a shutdown, the Department of State said that only life and death circumstances would justify visa processing.  The more recent statement is tempered, clearly, but we’re only in Day 2 of the shutdown, as of this writing.

5. The Executive Office of Immigration Review (Immigration Courts) are implementing shutdown plans, and furloughs will occur for non-essential personnel. The detainee docket is considered an essential function and therefore will continue to operate.

6. U.S. Immigration and Customs Enforcement (ICE) operations will continue in regards to detention and enforcement operations.

7. The SEVIS system for students and exchange visitors will continue to operate, due to being a fee-funded program.

Let’s hope this gets resolved sooner than later. The longer the shutdown, the more likely other agencies and petition types will be impacted.

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