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Posts Tagged ‘DOL’

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.

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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.

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.

Checking the Status of Labor Condition Application (LCA) or Prevailing Wage Determination (PWD)

November 5, 2010 Leave a comment

The U.S. Dept. of Labor now has an online portal with a feature which enables an individual with a valid case number for a Labor Condition Application (LCA) or a Prevailing Wage Determination (PWD) application to check the status.  The hyperlink is http://icert.doleta.gov/index.cfm (box on the right hand side)

At this time, the Dept. of Labor (DOL) does NOT offer an online case status feature for pending PERM labor certification applications.  Only sponsoring employers or attorneys that filed the PERM labor application will be able to check the status after logging in to the DOL online portal.

Prevailing Wage Determinations Take About Two Months

May 11, 2010 Leave a comment

Ever since the Prevailing Wage Determination (PWD) system was centralized in early 2010, the U.S. Department of Labor has been taking about two months to issue PWDs.  PWDs are generally sought in the context of proceeding with employment-based green cards, H-1B, H-1B1, H-2B, and E-3 visa categories.  Although employers planning to file employment-based green cards can proceed with recruitment prior to obtaining a PWD, it is not prudent to do so.  One reason to abstain from such aggressive approach is if the PWD wage as determined by the Department of Labor ends up higher than the wage employer used to undertake recruitment efforts, such recruitment will need to be repeated with the new wage.  Thus, much earlier planning and filing of PWD, anticipating a two-month processing time is highly recommended.  As always, consult with your immigration attorney in properly planning your case. 

PERM Labor Processing Times Improve

May 11, 2010 Leave a comment

Processing times for PERM foreign labor certification applications adjudicated by the U.S. Department of Labor have been extremely slow for at least the past couple of years.  The good news is that the processing times appear to have improved quite a bit in the last 6-9 months.  We received labor certifications in April 2010 for cases filed in October/November 2009. 

Checking Case Status Online: Quite often, foreign-national applicants wonder if there is a way they can plug-in their case number to track the case status on the internet.  Unfortunately, at this time the Department of Labor’s online portal does not support this feature.  The only way to check the case status is if the employer or the attorney logs in securely with a pre-assigned username/password to check the case status.   

Comprehensive Immigration Reform ASAP Act of 2009 Introduced in Congress

December 19, 2009 Leave a comment
Rep. Solomon P. Ortiz (D-Texas) and Sen. Robert Menendez (D-New Jersey) have introduced “Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009” legislative bill in the House of Representatives and Senate, respectively.  The legislative bill itself is 644 pages.  While there are a whole host of issues addressed in the bill, I skimmed through some portions of it and here are some points based upon my understanding of it:
 
  • Increases the Employment Based quota from 140K to 290K per year with recapture of past unused numbers.
  • Recaptures of Family Based unused numbers.
  • Immediate relative definition to be expanded to include imm family members of LPRs as well.
  • L-1 violations to be investigated by DHS
  • Mandatory L-1 employer audits on an annual basis.
  • Mandatory compliance audits of employers with more than 100 employees total and if 15% are L-1.
  • Prevailing wages for L-1 employees.  And mandatory Level 2 of OES wage for L1 positions.
  • Mandatory filing of W-2 evidence by employers with DHS on a yearly basis.
  • Money penalties of $10,000 per violation of H-1 or L-1 laws.
  • DOL to hire additional 200 staff to handle complaints, etc.
  • L-1B employees placement is tied to displacement of U.S. workers at client sites.
  • L-1B placement at client locations no more than 1 year unless DHS Secretary waives in writing stating that no U.S. worker is displaced. 
  • Restrictions on new office L-1s by requiring a long list of documents.  Sort of like RFE is etched in the law itself!!!
  • No discussion of H-1B quota increase or anything (at least to the extend I read).
  • And many more, which I could not get to yet. 

If you want to read the bill for yourself, click on the following link:

http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4321:

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