Final Rules Published on Labor Certification Cases

The Department of Labor (DOL) has published its Final Rule on labor certification issues. This Final Rule, effective July 16, 2007, prohibits the substitution of alien beneficiaries on permanent labor certification applications and resulting certifications. This provision applies to both PERM and pre-PERM labor certifications. This change will not affect substitutions already approved by the USCIS (approved I-140 cases) or substitution requests in progress (pending I-140 cases) as of the rule's effective date. Thus, employers who are interested in substituting employees into approved labor certifications should act quickly and file the I-140 substitution cases before July 16.

Additionally, the DOL rule creates a 180-day “validity period” for permanent labor certifications. Employers now have 180 calendar days within which to file an approved permanent labor certification in support of a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS. This rule applies to all permanent labor certifications filed on or after the rule’s effective date of July 16, 2007. All labor certifications that were approved prior to July 16, 2007, will expire on January 12, 2008 (180 calendar days after the effective date of the rule). As a result, employers who have previously approved labor certifications that have not yet been used for I-140 cases should be sure to use these labor certifications by January 12, 2008

The DOL rule also now requires employers to pay the costs of preparing, filing, and obtaining labor certification. Starting July 16, an employer will no longer be allowed to pass the costs incurred for the application process to the alien employee. This includes "payment of the employer's attorneys' fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application." The DOL notes that work performed by the alien employee related to the offered job, based on the employment relationship, is acceptable under the rule, and does not qualify as "reimbursement in costs" for the labor certification process.

The rule additionally states that "an alien may pay his or her own costs in connection with a labor certification, including attorneys' fees for representation of the alien, except that where the same attorney represents both the alien and the employer, such costs shall be borne by the employer." Thus, employers should be aware that even if the alien originally retained the attorney, it is highly probable that the attorney could eventually represent the interests of both the alien and the attorney, particularly because the employment-based immigration process often requires the employer to make representations to the government with guidance from an attorney.

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Backlog ends in permanent labor certification program (10/04/07) 

WASHINGTON — The U.S. Department of Labor today announced that the permanent foreign labor certification program's backlog has been eliminated, with nearly 99 percent of cases completed and the remainder awaiting responses from employers. For almost three years, more than 300 workers in two processing centers reviewed approximately 363,000 pending labor applications, a backlog created as a result of legislative changes in 1997 and 2000.

From the outset, the department pledged that the backlog would be eliminated by September 30, 2007. Both of the Backlog Elimination Centers have started a transition and shutdown phase that will continue through December.

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USCIS Terminates Premium Processing Service for Form I-140 Petitions
 

Anticipating a substantial increase in the number of incoming petitions, the USCIS will be temporarily suspending Premium Processing Service for Form I-140 (Immigrant Petition for Alien Worker) effective July 2, 2007. This expected increase is due to the built up demand for preference visa categories which will become current on July 1, 2007. The volume of Form I-140 petitions requesting Premium Processing is expected to exceed the USCIS’ capacity.

The initial suspension will last 30 days ending August 1, 2007. If following this period they determine they will not be able to begin processing these cases within the necessary 15 calendar days for Premium Processing Service, the suspension may be extended.

Suspension of Premium Processing for Form I-140 Extended

The USCIS has extended the temporary suspension of Premium Processing Service for Form I-140 (Immigrant Alien Worker Petitions) which was previously announced on June 27, 2007 and became effective on July 2, 2007.

Anticipating that the volume of Form I-140 petitions filed that request Premium Process Service will continue to exceed their capacity, the suspension will continue until further notice. Premium Processing Service guarantees that within 15 calendar days of receipt of a petition, USCIS will issue an approval or denial notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation.

The USCIS will continue to evaluate their capacity and will reinstate the service once they feel they can process these cases within 15 calendar days of receipt.

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USCIS Runs Random Selection Process For H-1B Petitions

WASHINGTON – (4/14/08) U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication.  If approved these H-1B petitions will be eligible to receive an H-1B visa number. 

USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap. 

The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers.  USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008.  USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives.  As previously announced, duplicate filings will be returned without the fee.  The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible.  USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition.  USCIS will send a letter to the wait list petitioners to inform them of their status

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.

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USCIS Reaches FY 2009 H-1B Cap

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009.  USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption.   Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008.   Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.

USCIS will carry out the computer-generated random selection process for all cap-subject petitions received.  USCIS will select the number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the “advanced degree” exemption limit. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate.   USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

The agency will conduct the selection process for “advanced degree” exemption petitions first.    All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.  

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USCIS Processing Times

Vermont Service Center Processing Times

Texas Service Center Processing Times 

Nebraska Service Center Processing Times 

California Service Center Processing Times

Posted on April 15, 2008.  

Source: USCIS.   

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Visa Bulletin

Visa Bulletin for MAY 2008

                            To view the entire Visa Bulletin, please go to THIS LINK.

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