Posts Tagged ‘PERM’

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 |

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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Posted in General, Scott Railton |

Shutdown Over: What Happens Now

Friday, October 18th, 2013 by W. Scott Railton

Congress ended the self-imposed government shutdown this week. The shutdown was a bit odd, from my view, insofar as not everything shut down. In the immigration sphere, some immigration courts remained open, others didn’t. USCIS continued to adjudicate petitions, but the Department of Labor went on hiatus. Whatever the case, the bureaucracy is now finding its legs again.

A few items worth posting in the aftermath:

  • USCIS says that if an H-1B, H-2A or H-2B petition is now submitted with evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements. More specifically, this means if a petitioner was unable to work with Department of Labor due to the shutdown, to obtain labor condition application or a prevailing wage determination, such a delay will not be held against the petitioner.
  • The Office of Foreign Labor Certification is once again processing labor condition applications, prevailing wage requests, and labor certification applications. The on-line PERM and ICERT systems are reportedly running slow today, due to backed up demand and capacity.  The sites did not get up an running until this morning.
  • The electronic E-Verify system is back up and running.
  • All other immigration-related agencies seem to be up and running, with minor adjustments being made in scheduling as are practically required for those coming back to work.

Perhaps most importantly, there is some suggestion that immigration reform is the top agenda item for many legislators and the President, now that the budget and debt issues have been temporarily resolved. Some experts suggest that immigration is a good issue for the Republican Party to tackle right now, to try to recover a bit from the public opinion hit the G.O.P. has taken in relation to the shutdown. Time will tell.

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