Increased Time/Difficulty in Filing H-1B Petitions Likely Due to Burdensome New LCA/ETA Form 9035 Form Rolling Out on November 19, 2018
The Office of Foreign Labor Certification (OFLC) of the U.S. Department of Labor (DOL) announced that the new ETA Form 9035, Labor Condition Application (LCA) for Nonimmigrant Workers, will be fully implemented on November 19, 2018. The existing LCA remains valid and the public can continue to file it until November 19, 2018. Employers or their authorized representatives who are filing an LCA on or after November 19, 2018, must use the revised form. Certified LCAs filed prior to November 19, 2018 will also remain valid and can be used by petitioners to support H-1B filings.
AILA has already submitted comments on the proposed revised form during the Notice and Comment period in October 2017 and June 2018. In the latter, AILA noted that the additional time required to complete the new ETA 9035 had been significantly underestimated by DOL and that, “[w]hile the proposed changes are largely helpful, there are nevertheless areas where the proposed changes may (1) violate regulatory requirements; (2) create unnecessary new burdens on employers; and (3) fail in practice to meet DOL’s stated purpose of providing clarification.”
The U.S. Department of Labor’s OFLC statistics on H-1Bs as of 8/31/14, including number of LCAs received, top occupations, states, and employers, as well as the number of certified, denied, and withdrawn LCAs, number of positions requested and certified, and percentage of applications timely processed.
Interestingly, of the top ten (10) H-1B Occupations:
- The top three (3) H-1B Occupations involve Information Technology.
- A total of six (6) of the top 10 H-1B Occupations involve Information Technology.
Link: H-1B_Selected_Statistics_FY2014_Q4 (PDF)
AILA’s recommendations on filing H-1B, PERM and other applications while DOL’s iCERT and PERM Websites are Shutdown
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:
USCIS will remain operational during the Federal Government Shutdown thanks to the healthy funding it derives from USCIS filing fees
- 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
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.
The Department of Labor has been experiencing technical problems with the PERM system, which still remains unavailable.
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.
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
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
- Read this news release en Español.
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