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AILA’s recommendations on filing H-1B, PERM and other applications while DOL’s iCERT and PERM Websites are Shutdown

Federal Workers Protest Government Shutdown

Federal Workers Protest Government Shutdown (Photo credit: cool revolution)

The American Immigration Lawyers Association (AILA) has indicated that they are trying to obtain guidance from USCIS and US Department of Labor (DOL) about how attorneys should move forward in filing applications like the H-1B and PERM/Labor Certifications which have been affected by the DOL’s shutdown (resulting from the Federal Government’s Shutdown).

AILA does not have official guidance from the USCIS and DOL yet and indicates that there are “conflicting reports” regarding DOL’s ability to even accept mail.  For now, however, AILA recommends the following:

Read More…

USCIS will remain operational during the Federal Government Shutdown thanks to the healthy funding it derives from USCIS filing fees

English: replaces :Image:H1b demographics indi...

H1B demographics india.jpg Category:Immigration to the United States charts and graphs (Photo credit: Wikipedia)

  • Good news: USCIS’ operations though the Federal Government Shutdown are expected to continue because it is funded by sources other than appropriated funds (read: H-1B and other USCIS filing fees). In fact, this funding is so substantial that USCIS expects to send home only 353 of 12,558 employees during the temporary shutdown.
  • Consulates remain operational at this point.
  • Unfortunately, the DOL ETA will not process any employment based labor certifications during the shut down. The PERM PLC website is also down, as is iCert.

We have received approvals on our PERM Reconsideration Requests filed subsequent to an “Agricultural Engineer” Denial

English: Experimental farm and Unit of Crop Pr...

English: Experimental farm and Unit of Crop Production of the school of agricultural engineering of the Technical University of Madrid (Spain) Español: Campos de prácticas y edificio del Departamento de Producción Vegetal: Fitotecnia de la ETSI Agrónomos de Madrid (Photo credit: Wikipedia)

Our office has received approvals for PERM cases previously denied by DOL.  DOL had indicated in the denial that using the term “Engineering” in advertising for an IT position was essentially overbroad, and that “the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.”  The original DOL denial stated:

“the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of Senior Software Developer, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a Senior Software Developer. For example, U.S. workers who have a degree in an engineering field like “Agricultural Engineering” are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the Senior Software Developer position. Specifically, the curriculum for a degree in Agricultural Engineering focuses on educating students in the analysis and design of machinery, animal housing, and environmental systems for the production, processing, storage, handling, distribution, and use of food, feed, fiber and other biomaterials, and the management of related natural resources, by integrating basic physical and biological sciences with engineering design principles…Because the employer’s education requirements are so broad, the Certifying Officer is unable to determine if these requirements are normal to the position and/or if they are unduly restrictive. Therefore, the Certifying Officer has concluded that an applicant with any engineering degree would not have the skills necessary to perform the duties of the position in an acceptable manner, and as a result, is unable to determine the employer’s actual minimum requirements for the job opportunity.” 

Following our reconsideration request, the DOL has approved/certified our client’s PERM cases.

Department of Labor Issues PERM and Prevailing Wage Processing Time Report

VIA Dept. of Labor ETA
NPWC Processing Times (as of 03/26/2013)

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ETA 9089 PERM System Down for Several Days – AILA Investigating

The seal of the United States Department of Labor

The seal of the United States Department of Labor (Photo credit: Wikipedia)

The Department of Labor has been experiencing technical problems with the PERM system, which still remains unavailable.

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NFAP Report: DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals

The recently released National Foundation for American Policy (NFAP) report underscores the severe consequences that will result if the U.S. Department of Labor’s proposed changes to form ETA 9035 (LCA) are implemented.

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iCERT System unavailable February 6, 2012 8am to 1pm EST

The iCERT System will be unavailable from 8AM to approximately 1PM Eastern Time on Monday, February 6, 2012 so that we may implement enhancements to the iCERT Prevailing Wage Module.

The Office of Foreign Labor Certification is providing an update to the public on its plans for becoming current on issuing prevailing wage determinations for PERM, H-1B and H-2B cases

foreignlaborcert.doleta.gov

The Office of Foreign Labor Certification is providing this update to the public on its plans for becoming current on issuing prevailing wage determinations:

PERM: Week of October 23, 2011
H-1B: Week of November 6, 2011
H-2B: Week of December 18, 2011

“Current” carries a different meaning in each program. A prevailing wage determination is “current” in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, “current” is within 30 days of submission in accordance with the program’s regulations. These dates may be subject to change based on actions not anticipated by the Department at this time such as any additional judicial determinations. The PWD appeals are being processed as resources allow with priority being placed on becoming current on initial PWD requests in each of the respective program areas.

2 Jacksonville, Fla., restaurants and owners ordered to pay more than $934,000 to 30 workers following US Labor Department investigation @US Dept. of Labor

VIA US DOL 8/18/2011 – JACKSONVILLE, Fla. — Two La Nopalera restaurants in Jacksonville and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments. The agreements resolve a U.S. Department of Labor lawsuit based on an investigation by its Wage and Hour Division that alleged violations of the Fair Labor Standards Act’s minimum wage, overtime pay and record-keeping provisions.

“All workers deserve to be paid fairly, and the Labor Department will hold accountable employers that take advantage of their employees,” said Secretary of Labor Hilda L. Solis. “We want workers to know we will defend their rights under the law to compensation for all hours worked, and we want companies that play by the rules to know we will take action against those that use illegal tactics to gain a competitive advantage.”

Investigators found that kitchen employees were improperly classified as exempt from FLSA overtime pay provisions and consequently paid salaries that did not include compensation for hours worked over 40 in a week. Additionally, every week, tipped employees would receive their tips plus a paycheck that together equaled the minimum wage; however, management required the employees to sign and return the paychecks, and would then cash the checks and put the money back into the restaurant. Through this process, while it appeared that the owners were paying wages, the employees actually were allowed to keep only their tips. Finally, the employers did not maintain accurate records of the hours worked by employees.

The department’s suit was filed in the U.S. District Court for the Middle District of Florida, Jacksonville Division. The following parties agreed to consent judgments resolving the suit: LAJAL Inc., doing business as La Nopalera No. 7 on Beach Boulevard; its owners Javier Valencia, Augustin Hernandez and Maria Hernandez; La Nopalera Mexican Restaurant No. 10 Inc. on Phillips Highway; and its owners Javier Valencia and Luis Cuevas. The judgments hold the restaurants and owners individually and severably liable for future violations of the FLSA and payment of the back wages.

The employees will receive $584,425 in back wages and an additional $350,000 in liquidated damages. The restaurants will be allowed to make the payments in installments over 13 months to the Wage and Hour Division, which will distribute the payments to workers. Other La Nopalera restaurants located in Florida and Georgia were not part of the investigation.

The Wage and Hour Division has several ongoing enforcement initiatives throughout the nation to address similar noncompliance issues that are common in the restaurant and other industries.

The FLSA requires that covered employees be paid at least the federal minimum wage for all hours worked, as well as one and one-half times their regular rates of pay for hours worked over 40 per week. If certain conditions are met, the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees. The employer must pay tipped employees a cash wage of $2.13 per hour or the state mandated cash wage, whichever is higher; all tips must be retained by the employee except for contributions to a valid tip pooling arrangement; employees must be informed of the tip credit provision; and the amount of tips plus cash wages must equal the federal minimum wage, currently $7.25 per hour. Additionally, the law requires that accurate records of employees’ wages, hours and other conditions of employment be maintained.

This case was investigated by the Wage and Hour Division’s Jacksonville District Office with legal representation supplied by the Labor Department’s Atlanta Regional Solicitor’s Office. For more information about the FLSA, call the division’s Jacksonville office at 904-359-9292 or its toll-free helpline at 866-4US-WAGE (487-9243). Information also is available on the Internet athttp://www.dol.gov/whd.

Solis v. La Nopalera Mexican Restaurant No. 10 Inc.
Case File Number 3:11-cv-583-j37mcr

Solis v. LAJAL, Inc. doing business as La Nopalera No. 7
Case File Number 3:11-cv-584-j34jrk

Department of Labor Updates Labor Certification Processing Times (Updated 02/16/11)

PERM Processing Times (as of 02/04/2011)
Processing Queue Priority Dates
Month Year
Analyst Reviews February 2011
Audits January 2009
Standard Appeals June 2008
Gov’t Error Appeals Current

OFLC has initiated an intensive effort to reduce the Permanent Labor Certification Program’s pending caseload. Our goal for FY 2010 is to reduce the backlog by 50%. We are on schedule, and we will continue this effort as part of our larger Departmental commitment to customer service. The dates posted on iCERT above reflect the month and year in which cases were filed that are now being adjudicated at the Atlanta National Processing Center. For various reasons, we may be completing the processing of applications filed prior to the month posted on iCERT. If your application was filed more than 3 months prior to the month posted, you may contact our Helpdesk for a status on the application at plc.atlanta@dol.gov.

Quarterly/Annual Performance Reports

DOL Provides Current PERM Processing Dates – Via AILA

VIA AILA

At the AILA Spring Conference on March 20, 2009,
DOL announced they were working on cases with Priority Dates (initial
case filing dates) in the following queues:

No Audit: July 2008

Audit: September 2007

Appeal: June 2007

AAO Holds 5-year Indian M.B.B.S. Degree Equivalent of U.S. M.D. Degree

VIA AILA

In
a non-precedent decision, the AAO holds that a 5-year M.B.B.S. degree
from India is the equivalent of a U.S. M.D. degree and discusses
evidence of degree equivalency.


<a href="/files/4941-4844/112233mbbsdefault.pdf”>Read Decision (.PDF File)

DOL Published Notice of Public Briefings on New ETA 9035 and ETA 9089 Forms

[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Notices]
[Page 2634]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-140]

[[Page 2634]]

—————————————

DEPARTMENT OF LABOR

Employment and Training Administration

Announcement of Public Briefings on Using Redesigned Labor
Certification Forms and Stakeholder Meeting

AGENCY: Employment and Training Administration, Labor.

ACTION: Notice.

—————————————

SUMMARY: The Office of Foreign Labor Certification (OFLC) in the
Department of Labor’s Employment & Training Administration (ETA) has
been re-engineering several of its program forms to improve the
information it collects from the public. These changes are intended to
improve the application to and day-to-day operation of OFLC programs.
The system re-engineering will impact the program for the Temporary
Employment of Nonimmigrants in Professional, Specialty Occupations, and
as Fashion Models (H-1B, H-1B1, and E-3). The Form ETA 9035, the Labor
Condition Application (OMB control number 1205-0310) used for the H-1B,
H-1B1, and E-3 programs, was redesigned and submitted for public
comment, 73 FR 36357, Jun. 26, 2008, and for review by the Office of
Management and Budget (OMB), 73 FR 66259, Nov. 7, 2008. In addition,
the Permanent Labor Certification Program (PERM), OFLC will be
implementing changes to the electronic filing process and is
implementing a revised application form. The redesigned Form ETA 9089
(OMB control number 1205-451) has been approved by OMB subject to
review of the final electronic version.

ETA is issuing this notice to announce that OFLC will offer two
public briefings to educate stakeholders, program users, and other
interested members of the public on using the re-engineered 9035 and
9089 application forms, and the online portal system by which most
users file program applications.

ETA will also hold a stakeholder meeting in San Diego, California
on February 3, 2009.

As currently planned, the two briefings will take place in
February, 2009 in San Diego and Baltimore, Maryland. This notice
provides the public with locations, dates, and registration information
regarding the briefings.

FOR FURTHER INFORMATION CONTACT: William L. Carlson, Ph.D.,
Administrator, Office of Foreign Labor Certification, Employment and
Training Administration, 200 Constitution Avenue, NW., Room C-4312,
Washington, DC 20210; Telephone: (202) 693-3010 (this is not a toll-
free number).

SUPPLEMENTARY INFORMATION: The following registration information
should be used by any member of the public planning to attend any of
the briefing sessions.

San Diego: February 4, 2009.

Time: 9:30 a.m. to 12:30 p.m.

PERM Update (changes to electronic filing and new application form)
and H-1B LCA Form 9035.

Location: Manchester Grand Hyatt, One Market Place, San Diego,
California 92101

Washington, DC: February 9, 2009.

Time: 9:30 a.m. to 12:30 p.m.

PERM Update (changes to electronic filing and new application form)
and H-1B LCA Form 9035.

Location: Baltimore Marriott Inner Harbor at Camden Yards, 110
South Eutaw Street, Baltimore, MD 21202.

Registration: To register for one of the briefings listed above,
please use the following information. To complete the registration
process on-line, please visit www.dtiassociates.com/
oflcbriefings. For questions regarding the registration process, please
call (703) 299-1623 (this is not a toll-free number). Due to space
considerations, attendance will be limited to those who register on-
line.

Signed in Washington, DC, this 9th day of January 2009.
Brent R. Orrell,
Deputy Assistant Secretary, Employment and Training Administration.
[FR Doc. E9-678 Filed 1-14-09; 8:45 am]

BILLING CODE 4510-FP-P

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