Employment based permanent residency – Page 4

January 11, 2007by SCwpadmin SCwpadmin 111 Comments

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.

December 22, 2006by SCwpadmin SCwpadmin 314 Comments

DOL Announces New Procedures for RIR Conversions at BECs

On December 22, 2006, the Office of Foreign Labor Certification announced new procedures for conversion of traditionally filed cases currently being processed at the Backlog Elimination Centers to the Reduction in Recruitment (RIR), process. The full announcement can be found here: http://www.foreignlaborcert.doleta.gov/pdf/backlog_faqs_12-22-06.pdf

Summary of the main points:

Why would an employer want to convert its TR case to RIR? RIR cases generally are completed and reach a disposition faster than TR cases. This enables the employer and alien beneficiary to move the case further to completion in the permanent labor certification process.

Who is generally eligible for RIR conversion under this “new” opportunity? An employer may file a request to convert to RIR if it has a currently pending TR application in one of the BECs (Dallas or Philadelphia) that meets the following conditions: ƒ The case has not already received a disposition, e.g. certification, denial; ƒ A Notice of Findings (NOF) has not been issued for the application, or a NOF has been issued but successfully rebutted at the time of sending the email request; ƒ The application is not for a Schedule B occupation; and ƒthe applicant or its attorney/agent has not received a Recruitment Report Instructions Letter from the BEC indicating that supervised recruitment has ended and providing instructions for the results.

A “hold harmless” benefit in the new guidance allows the employer to commence recruitment without concern that the BEC will initiate job order activity before the employer can submit the recruitment request along with the recruitment, making the applicant ineligible to convert. Any applicant who sends in an e-mail with the specified language before January 20, 2007, indicating its intent to request conversion of its TR case to RIR status will be granted the assurance that the RIR conversion will not be denied solely because the BEC has initiated TR recruitment activities. Therefore, the employer is free to engage in recruitment for preparation for the RIR package without the concern that the BEC will begin TR recruitment activities.

What are the steps under this opportunity?

a) No later than January 20, 2007, the applicant or its designated attorney sends an e-mail to the appropriate BEC using specified language indicating its intent to convert a TR case to RIR status. The e-mail should also contain any proposed amendments.

b) The BEC will place the applicant’s case in “hold” status pending receipt of the RIR conversion package.

c) The BEC will send the applicant a receipt e-mail with the new prevailing wage for the position upon which to base the wage offered in its recruitment, and the status of any proposed amendments, i.e., accepted or not.

d) The BEC will send the employer any resumes the BEC has received in response to any job order activity or advertisement for the employer to consider in preparing its RIR recruitment results package. (Note: This only pertains to cases where a job order activity has been initiated or advertisement was posted by the employer before the employer sent the intent to convert e-mail. In such an instance, this advertisement may be submitted for consideration as part of the RIR conversion recruitment package.)

e) The applicant engages in recruitment and prepares the RIR recruitment results report and supporting documentation (the RIR conversion package).

f) The applicant or its designated representative sends the RIR conversion package to the appropriate BEC in hard copy, by regular mail, certified mail, or mail courier, with the subject “RIR Conversion Package – [case number]” no later than April 1st, 2007. If no package is postmarked for receipt by this date, the case will be closed. These applications do not revert to the TR queue and the decision to close is not subject to appeal.

g) Once the RIR conversion package is received by the BEC, the BEC staff will evaluate the package and determine whether the case can be converted to RIR status.

h) If the case meets the criteria for RIR conversion, the case will be converted and processed as an RIR application. If the case is not eligible, or exhibits other deficiencies that make it ineligible for RIR conversion, the employer will receive a letter advising that the RIR conversion request has been denied and the case will be processed as a TR case retaining its original priority date.

What types of cases are appropriate for an RIR conversion request? Job opportunities which hav an SOC code falling into the following:

1. “In (high) demand” Occupations as listed on O*NET
2. High growth industries identified by ETA: http://www.doleta.gov/BRG/JobTrainInitiative/
3. Any position(s) identified by SWA information as in-demand or shortage occupations.

If an employer’s job opportunity has a SOC code that is not within one of these categories, the employer is not prohibited from filing an RIR conversion request, but the applicant will have to provide evidence at the time of filing the RIR conversion package that the job opportunity is in an occupational field in a demand, high growth, or shortage occupation that is appropriate for a request for a waiver of supervised recruitment.

December 14, 2006by SCwpadmin SCwpadmin No Comments

RIR Conversion Guidelines For BEC Cases Expected Soon

Members of this firm recently attended a teleconference in which it was announced that the DOL would soon be publishing new procedures for conversion of traditional cases at the backlog centers to the RIR option. One of the presenters in the teleconference had just attended a meeting with the DOL and obtained some preliminary information on the new procedures.

Though the following has not yet been confirmed by any official announcement, it is expected that the new procedures will require notification to the BEC of the intention to convert to RIR. The BEC will then respond with the required wage and recruitment instructions. Those instructions are expected to include one print ad placement and one item from the menu of alternative recruitment strategies under PERM, the new labor certification process in place since April, 2005. There may be a date certain by which the conversion request must be received at the BEC or face case closure.

November 28, 2006by SCwpadmin SCwpadmin 10 Comments

USCIS Expands Premium Processing Program

The United States Citizenship and Immigration Service (USCIS) announced the expansion of the premium processing to include certain employer petitions, beginning August 28, 2006. Premium Processing allows petitioners to pay an additional $1,000 filing fee in exchange for 15-calendar-day processing of the case.

Beginning August 28, 2006, employers filing immigrant petitions on form I-140 for Professionals and Skilled Workers in the EB-3 category. “Professionals” are defined as individuals with a bachelor’s degree who are members of the professions, and “Skilled Workers” are those defined as those capable of performing skilled labor requiring at least two years of education, training or experience. Only individuals with I-140 petitions in these categories will be eligible to participate in the premium processing program.

Please note that Premium Processing will not be available for petitions in the EB-2 category, or for “Other Workers” in the EB-3 category.

November 28, 2006by SCwpadmin SCwpadmin 26 Comments

Glitch at BEC Results in Erroneous Labor Certification Withdrawals

A recent glitch at DOL resulted in the withdrawal of some pending Traditional and RIR labor certification applications at the BECs if a PERM was filed or approved for the same employer and employee, even if question 1A on the PERM application was answered “no”. Some received notices of the withdrawals, and others did not but are showing up in the case status system as “withdrawn”.

The DOL is working on resetting all these cases, except the ones where question 1A on the PERM application was answered “yes”, and expects to finish the process by November 30, 2006. It is unlikely that reset cases will show up on the system as corrected until November 30.
DOL states that the reset cases will be returned to their former places in the processing queue and that original priority dates will be retained.

DOL asks that, if you have one of these cases, you please refrain from inquiring with them until December 1. If, as of December 1, your case is still showing withdrawn, a mechanism will be worked out to address it. DOL is also asking that, if you have one of these cases, you NOT check the case status system until December 1, as the volume of checks has become quite high as the result of this problem and there is concern that the system will crash.
DOL will shortly issue an announcement regarding this problem and the solution, which will address, among other things, what to do with any ETA 750 forms that were returned in connection with the erroneous withdrawals.

The Office of Foreign Labor Certification has received reports that some employers/attorneys were sent back an original 750 with the inadvertent withdrawal. Since the Backlog Elimination Centers (BECs) have a second original 750 for these cases, the case will continue to be processed. The employer/attorney does not have to take any action at this time. In the unlikely event that the BEC requires the first original 750, the employer/attorney will be notified.”

Information provided by AILA.