The Senate “compromise”comprehensive immigration reform proposal would radically change employment-based immigration law in the United States. A point system would replace the current approaches to permanent residence, including labor certification, national interest waiver, extraordinary ability applications, etc. In addition, the bill would strip the “dual intent”” provision regarding H-1B visa applications, which would make it much more difficult to obtain H-1B status. Also a new fee of $5,000 will be added to the H-1B application process. Furthermore, the bill does nothing to increase the availability of H-1B visas or eliminate excessive backlogs in employment-based permanent resident processing.
In the face of these changes, the business community has remained relatively silent. Our office encourages our clients, and other members of the business community, to make their voice heard by contacting their elected representatives in Washington and urging them to amend the bill to be more favorable to American employers.
The American Immigration Lawyers Association website (http://www.aila.com)/) provides an easy vehicle for contacting senators and congresspeople. Now is a critical time for employers to act in favor of employment-friendly immigration reform.
Another District Court Grants I-485 Mandamus Action
More and more District Courts are ruling in favor of plaintiffs who sue to have their long-delayed I-485 application for adjustment of status adjudicated. The U.S. District Court for the Northern District of California granted an adjustment Mandamus action on April 25, 2007. Our office has filed a number of Mandamus actions, and we have achieved some favorable results. Individuals with long-standing adjustment applications should consider the possibility of filing a Mandamus action (which is not appropriate in every case).
DEPARTMENT OF LABOR PUBLISHES "NO SUBSTITUTION" RULE
After many years, the Department of Labor has finally published its rule regarding the substitution of beneficiaries in the labor certification process. The new rule bans substitutions as of the effective date of the new rule (July 16, 2007). Employers can file substitution requests up to this date.
The new regulation also limits the validity of labor certifications to 180 days; I-140 petitions must be filed within 180 days of the approval of the labor certification. For petitions which were approved before July 16, the 180 days starts to run July 16, 2007.
Finally, the new rule prohibits employees from paying any of the employer’s costs in the labor certification process. Therefore, employees who intend to pay all or part of the employer’s labor certification attorney’s fees should file prior to July 16, 2007. The regulation does not bar employees from paying the fees and/or costs associated with the employee. Our firm will be analyzing whether we can apportion the fees and costs we charge for the labor certification application to distinguish between fees and costs attributable to the employer and those attributable to the employee.
Employers and employees should act quickly if their labor certification application will be impacted by this new regulation.
STERN & CURRAY MOVES QUICKLY TO RESPOND TO JUNE 1, 2007 ADVANCEMENT OF PRIORITY DATES
Our law firm has moved quickly to respond to the substantial advancement in priority dates effective June 1st. Our firm has scheduled “choice appointments” with individuals whose priority dates will be current as of June 1st in order to ensure that applications for adjustment of status can be filed during the month of June in case there is a retrogression in visa numbers. Current clients of Stern & Curray who will have current priority dates in June, or other individuals who would like our assistance in preparing their applications for adjustment of status, should contact our office if they have not yet scheduled a choice appointment.
DOL Rule Against Labor Substitution Expected to be Published Soon
The Office of Management and Budget has finished its review of the DOL’s proposal to bar substitution of employees in labor certification applications and to prohibit employees from paying the employer’s attorneys’ fees. The proposed rule also set a time limit for the validity of a labor certification application.
Now that the OMB has concluded its review of this regulation it is expected that it will be published soon. The exact details of the rule have not yet been released.
USCIS Extends Validity of Medical Exams
Generally speaking, a medical examination submitted in connection with an application for adjustment of status is valid for one year. Due to visa backlogs and expanded processing times, many adjustment of status applications are not adjudicated within one year of filing. In January of 2006, USCIS extended the validity of medical exams until January 1, 2007. Due to the continuing backlog of some adjustment of status cases, USCIS has extended the validity of all filed medical exams until January 1, 2008. In other words, medical exams will remain valid until the adjustment of status application is adjudicated or until January 1, 2008. There is an excellent possibility that this deadline will be extended again the future.
Board of Immigration Appeals Clarifies Effective Date of Child Status Protection Act
In the case of Avila-Perez, the BIA has held that an individual who filed a visa petition which was approved before the August 6, 2002 effective date of CSPA can still be eligible for CSPA protection if the I-485 application for adjustment of status was filed after this date. This opens the protection of CSPA to a larger group of applicants which is a very positive development.
Rumor Regarding Publication of Labor Certification Substitution Rule
A rumor has been traveling around immigration circles that the Department of Labor will soon publish its final rule on substituting beneficiaries in labor certification applications. The proposed rule was promulgated on February 13, 2006 and, apparently, on January 26, 2007, DOL submitted the final version of the rule to the Office of Management and Budget. It is anticipated that it will take at least 90 days for OMB to take action on this rule, and it could require further steps before the rule is approved. No one is certain about the contents of the rule but it is widely believed that the rule will eliminate labor certification substitutions. Therefore, any company considering such a substitution should do so in the near future.
On a related note, the Department of Labor has proposed, for the first time, charging a fee for filing a labor certification application.
Procedures Announced to Correct Case Type at Backlog Center
On January 10th the DOL changed their Public Disclosure System for cases pending at the Backlog Elimination Centers to include the Case Type of the pending case (RIR or TR). The DOL has announced a procedure for employers or their authorized representatives to follow if they believe the case type as reflected on the Public Disclosure System (PDS) is incorrect (e.g., if it is listed as TR but they believe it should be RIR, or vice versa). In such an event, e-mail the general information e-mail box at the appropriate Backlog Elimination Center (BEC) (either info@phi.dflc.us or info@dal.dflc.us). The subject line of the e-mail must read “Incorrect Case Type – Case # [insert case number].” The body of the e-mail should explain why the employer believes the case type is incorrect. Any supporting documentation may be attached as a pdf. The BECs will review the case and reply as soon as possible based on the volume of requests. Depending on the volume of inquiries received, it may take the DOL a few weeks before the case type is corrected in the Public Disclosure System.
Information provided by AILA (InfoNet Doc. No. 07011965 posted Jan. 19, 2007)
DOL Clarifies Several RIR Conversion Issues
The following information was provided by AILA:
Q: Question 16 seems to indicate that we can challenge the prevailing wage before recruiting. If we send in a challenge, what will be the turn-around time to receive a response? If we already obtained a SWA wage, can we submit that in as an alternative source and will the BEC honor that SWA wage? (This could happen, e.g., because the SWA and BEC select different OES codes.)
A: We are making all efforts to review a wage challenge as quickly as possible. A SWA issued wage obtained by an employer independent of the application process will be considered as part of the evidence to rebut a BEC-issued wage, but it will be given no special evidentiary weight.
Q: Question 20 states: “changes to the original ETA-750 will not be accepted if they collectively constitute a new job opportunity.” What is a “new job opportunity?” (e.g.: a change in the SOC code; a change in location?) If the DOL determines the change to be a new job opportunity, when will that evaluation be made? Will the DOL review the requested changes in the email and respond right away or will the employer have to submit the RIR conversion package and wait and see? If the DOL makes this determination, what will happen to the case? Does it stay a TR case and the changes will be acknowledged and a TR process can be done using the amended form? How and when will the employer be told the changes “constitute a new job opportunity?”
A: The legal standard for consideration of amendments has not changed. As always, the CO will look to the changes in the job description, duties, and minimum requirements to make such a determination. The evaluation will be made up front – at the time of the prevailing wage determination — so that the employer will be able to act accordingly. If the case becomes a new job opportunity, the case will not be convertible to RIR and a TR process will be required.
Q: In one part of the DOL’s 12/22/06 FAQ, it says the e-mail must be received before January 20. Elsewhere, it says not later than January 20. Note that January 20 is a Saturday. Can you please clarify whether e-mails actually sent on Saturday, January 20 are acceptable, and whether e-mails received until mid-night January 20th (or whatever is the last date) are acceptable?
A: We have posted a revised date for January 22, the following Monday. Emails must be received by midnight EST that night.
Q: The 12/22/06 DOL FAQ states that for conversion cases, when BEC has already placed the job order, the BEC will send all resumes to employer (around 2/1/07) for consideration by employer. If DOL is going to require employers to review resumes received from the job order placed by BEC, in addition to resumes employers receive as a result of their own conversion recruitment, will DOL allow employers to use the job order placed by BEC as the additional forms of recruitment? This question was asked at the 12/11 meeting and the answer provided by Bill Rabung was basically, “no” you can’t use the job order BEC places because the employer won’t be getting the resumes in response to the job order. However, now that a process and timeframe (2/1/07) for providing the resumes to employers has been developed and employers must consider these resumes, then it seems reasonable that employers can use the job order as a form of recruitment to support conversion.
A: Unfortunately, the answer is still “no.” The job order placed by the BEC is placed by the Department of Labor, and has at least one critical difference from the recruitment placed by the employer in an RIR opportunity: the employer’s name does not appear in the job order. In addition, the job order placed by the BEC will be removed once an employer submits its email requesting conversion to RIR. It will not be a complete 30-day placement in the standard fashion of traditional recruitment; in some cases it may last for only a day. And the difficulties in tracking those cases in which amendments are accepted after a job order is placed (essentially mooting the job order) adds to the difficulty. As a result, that particular piece of recruitment cannot be considered as part of the employer’s RIR; the employer did not place it and has not initiated it. We do not believe that this imposes a significant burden on employers who may as a result have to consider a small number of additional U.S. workers.