Archive for the ‘Department of Labor’ Category

US Dept of Labor Announces Plans to Protect American Workers from H-1B Program Discrimination

April 6, 2017 Leave a comment

On April 5, 2017, the U.S. Department of Labor announced plans today to protect U.S. workers from H-1B program discrimination by providing greater transparency and oversight. The program allows employers to hire highly skilled foreign workers in specialty occupations. The H-1B visa program authorizes the temporary employment of qualified individuals who are not otherwise authorized to work in the U.S.

The Dept. of Labor states that in recent years, some employers have used the H-1B program to hire foreign workers despite American workers being qualified and available for work or even to replace American workers. The department fully supports the U.S. Department of Justice in cautioning employers who petition for H-1B visas not to discriminate against U.S. workers, as well as the U.S. Department of Homeland Security’s measures to further deter and detect H-1B visa fraud and abuse.

The department will protect American workers against discrimination through the following actions:

1. Rigorously use all of its existing authority to initiate investigations of H-1B program violators.
This effort to protect U.S. workers will also involve greater coordination with other federal agencies,
including the departments of Homeland Security and Justice for additional investigation and, if
necessary, prosecution.

2. Consider changes to the Labor Condition Application for future application cycles. The Labor
Condition Application, which is a required part of the H-1B visa application process, may be updated
to provide greater transparency for agency personnel, U.S. workers and the general public.

3. Continue to engage stakeholders on how the program might be improved to provide greater
protections for U.S. workers, under existing authorities or through legislative changes.


Update on Prevailing Wage Determinations

August 26, 2011 Leave a comment

Although some attorneys have reported receiving prevailing wage determinations recently, in a meeting held last week, the Dept. of Labor confirmed that it is currently working on clearing the backlog in H-2B wage determinations which it is required to clear by September 30.  DOL stated that it is working on clearing the backlog by third week of September. Upon completion of H-2B wage determinations, DOL indicated that it will start working on H-1B and PERM prevailing wage determinations.  Thus, in reality, attorneys could start receiving prevailing wage determinations sometime in October.

Dept. of Labor Suspends Issuance of Prevailing Wage Determinations

August 17, 2011 Leave a comment

Due a recent decision issued by a Court in Pennsylvania with regard to H-2B prevailing wage determinations, the U.S. Department of Labor is required to re-issue up to 4,000 H-2B prevailing wage determinations.  As a result, the Dept. of Labor has announced that it will currently not issue any new prevailing wage determinations (PERM, H-1B, or H-2B) until the re-issuance of all 4,000 cases is complete.  It is unclear as to how long the current hold will last.  Dept. of Labor is expected to provide an update as early as next week.  More information will be posted as it becomes available.

EB-2 Eligibility: A Simple Two-Prong Test

July 24, 2011 Leave a comment

Given the severe backlog in EB-3 immigrant visa numbers, especially for applicants from India, more individuals are considering the EB-2 route.  Our office receives the EB-2 inquiries almost everyday.  Not all cases qualify for EB-2.  When we review a case and inform the employer and the employee that a given case is not EB-2 eligible, what we get a typical response “I have x years of experience, why are you saying that I am not qualified?”.  A simple two-prong test would help understand the eligibility criteria.

Step 1: The minimum requirements for the position in question at the employer require a) an individual holding an advanced degree or its foreign equivalent in the specialty; or b) an individual holding a Bachelor’s degree or foreign equivalent and at least five (5) years of progressive (increasing in job responsibilities) post-Bachelor’s experience in the specialty.

Step 2: The foreign national being sought to fill the position in Step 1 must in fact meet the minimum requirements stipulated by the employer.

For instance, even if an individual holds a Doctorate degree in Computer Science from a top engineering school and has 10 years experience working for Fortune 100 Companies in key positions making $250,000/year, he or she might still not qualify for EB-2 if only the position he or she tries to fill requires someone with a Bachelor’s degree only.

Besides the above, there are other critical issues including, but not limited to, whether the individual has a combination of two degrees which might not equate to U.S. Master’s equivalent; employer’s ability to pay the wages for the position; minimum requirements for the position as stipulated by Department of Labor; minimum requirements stipulated by the employer for other same or similar positions currently and in the past within the organization; and whether the job requirements are tailored to qualify the foreign national only.

A careful, thorough review by an immigration attorney determines not just whether a person has a Masters or Bachelor’s + 5 yrs experience, but a holistic view of the entire case presently and an ability to foresee any potential issues in the future.  A well strategized case is not only good for the employer and the employee but is also appreciated by the two agencies dealing with the process, namely Dept. of Labor and U.S. Citizenship and Immigration Services.

Green Card Ability to Pay Issue Getting Nastier By the Day

April 22, 2011 Leave a comment

It used to be case that ability to pay was an issue at the U.S. Citizenship and Immigration Services at the time of filing of Form I-140 immigrant visa petition in an employment-based green card case.  The Department of Labor has always had the right to look into an employer’s ability to pay in reviewing the foreign labor certification applications a.k.a. PERM labor applications.

In response to a denial of labor certification application by the Department of Labor’s Certifying Officer in a recent case, the employer filed an appeal with Board of Alien Labor Certification Appeals (“BALCA”).  Upon appeal, BALCA upheld the denial by the Certifying Officer stating that the employer’s ability to pay the wages mentioned in a PERM labor application is not met where such ability to pay has been established by consultant-employees generating the revenues/funds.  This is an extremely narrow interpretation of law applied by BALCA and means that a great number of consulting companies sponsoring PERM labor applications on behalf of their consultant-employees are likely to see unfavorable decisions from the Department of Labor/BALCA.

Ability to pay must be met from the date of filing of the labor application up until the green card case has been fully adjudicated.  The best way to show ability to pay the wage mentioned on the PERM labor application is to actually pay the said wage each year through the full adjudication of a green card case.  There are other ways to demonstrate ability to pay and a careful analysis by a legal professional is important prior to initiating a green card case.

H-1B Public Access File Record Retention Rules

March 30, 2011 Leave a comment

Retention of LCA Records in a Public Access File: An H-1B employer that files a Labor Condition Application (LCA) required as part of the H-1B petition process is required to maintain the filed/certified LCA among other legally-mandated documentation in a Public Access File (PAF) for public inspection.  There are rules with respect to retention of records in such PAF.  An H-1B employer may maintain PAF either at its principal place of business in the U.S. or at the place of H-1B immigrant’s employment.  The employer shall retain copies of the records for a period of one (1) year beyond the last date on which any H–1B nonimmigrant is employed under a given LCA or, if no nonimmigrants were employed under the LCA, one (1) year from the date the LCA expired or was withdrawn.

Retention of Payroll Records: Required payroll records for the H–1B employees and other employees must be retained at the employer’s principal place of business in the U.S. or at the place of H-1B nonimmigrant’s employment for a period of three (3) years from the date(s) of the creation of the payroll record(s).  However if an enforcement action is initiated against the employer, all payroll records must be retained until the enforcement proceeding is completed.

PERM Labor Processing Times at All Time Best!

March 18, 2011 Leave a comment

PERM Labor processing times are at all time best.  Attorneys across the nation are reporting that PERM labor applications are being adjudicated in one to two weeks.  Our experience was some of the labors we filed were certified in 4-5 days.  However, if a labor cert. application ends up in an audit, the wait times could stretch to as much as two years, if not more.  The faster processing times are a welcome scenario to individuals that are finishing their six years of H-1B stay.  As soon as the labor is certified, an immigrant visa petition Form I-140 could be filed under premium fast track processing.

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