: Department of Labor : Global Immigration Counsel

Office of Foreign Labor Certification FAQ on Prevailing Wage Determinations Sends Mixed Message

Posted on September 19, 2011 by Immigration/Global Migration Group

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released Frequently Asked Questions Regarding Delays Issuing Prevailing Wage Determinations and H-1B Labor Condition Applications (pdf). OFLC’s current priority is to complete H-2B wage redeterminations, but it also notes that it receives voluminous requests for prevailing wage determinations (PWD) in connection with H-1B petitions. When filing an H-1B petition, the employer must pay to the H-1B employee 100% of the prevailing wage or higher. As OFLC points out in its FAQ document, an OFLC-issued PWD is not mandatory for H-1B petitions, and employers filing petitions may use the following alternative sources for determining a prevailing wage:

a wage rate included in a collective bargaining agreement;
a wage rate for the occupation and area of intended employment under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act;
a wage rate produced by a survey conducted by an independent authoritative source that meets DOL regulatory standards; or
a wage rate produced by another legitimate information source, such as the Bureau of Labor Statistics Occupational Employment Statistics Survey or a state-generated prevailing wage survey.

OFLC points out, however, that using an OFLC-issued PWD for an H-1B petition provides employers a “safe harbor” against claims that they failed to pay H-1B workers the required prevailing wage. If an employer uses an alternative source for determining the prevailing wage, it is at risk during a DOL wage and hour investigation and/or enforcement action of having to defend its asserted prevailing wage and demonstrate that the PWD meets the criteria dictated by H-1B regulations.

Consequently, should an employer use an alternative prevailing wage source (other than one issued by OFLC) when filing an H-1B petition, it is critical for the employer to ensure that the proper methodology is used by the person preparing the Labor Condition Application (LCA). An inaccurate representation on a LCA or the failure to be in full compliance with the required attestations may subject the employer to certain penalties, including fines, back pay and debarment from obtaining work authorization for foreign national employees. Further, the failure to comply with the DOL regulations regarding the employment of H-1B employees may result in a finding that the company is a “willful violator,” resulting in additional onerous attestation obligations regarding displacement of U.S. workers and recruitment of U.S. workers prior to the hiring of H-1B employees. Thus, it is very important to carefully review any such applications to be filed by the company to ensure accuracy, particularly the PWD used.

Tags: Department of Labor, H-1B, Labor Condition Application, OFLC, Office of Foreign Labor Certification, Petitions, Prevailing Wage, Safe Harbor, US Immigration, Visas

Immigration Bill Focusing on Temporary Agricultural Workers Introduced in Senate

Posted on October 6, 2010 by Immigration/Global Migration Group

United States Capitol Senator Saxby Chambliss (R–GA) has introduced S. 3912, “The Helping Agriculture Receive Verifiable Employees Securely & Temporarily Act of 2010” (“HARVEST Act”). The HARVEST Act aims to provide a non-amnesty option for temporary agricultural workers, streamline the H-2A temporary worker program, and discourage the hiring of undocumented workers. Additionally, according to Senator Chambliss, the bill would:

provide a mechanism for addressing the presence of undocumented workers on farms without providing a new path to citizenship;
ensure that U.S. nationals’ jobs are protected;
require the U.S. Department of Labor to increase random audits and investigations of H-2A employers;
limit the duration of a foreign worker’s continuous stay in the United States without returning to his or her home country;
require H-2A employers to verify hired agricultural workers’ eligibility; and
ensure that the H-2A program works for agricultural employers with year-round operations.

Tags: Agricultural Workers, Audit, Citizenship, Department of Labor, Federal Legislation, H-2A, HARVEST Act, Investigations, Senate Bill, Senator Saxby Chambliss, US Immigration, Undocumented Worker, Visas

DOL Adopts Final Rule on H-2A Temporary Agricultural Employment

Posted on February 22, 2010 by Immigration/Global Migration Group

The U.S. Department of Labor has published a final rule (pdf) in the Federal Register concerning temporary agricultural employment of foreign laborers under the H-2A visa program. The final rule:

amends regulations governing certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment;
amends regulations concerning the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers; and
provides for enhanced enforcement under the H–2A program requirements to ensure that workers are appropriately protected when employers fail to meet their obligations under the program.

The H-2A temporary agricultural program permits agricultural employers anticipating a shortage of domestic workers to bring nonimmigrant foreign workers to the U.S. to perform agricultural labor or services of a temporary or seasonal nature. Foreign workers coming to, or already in the U.S., may qualify under the program. However, before an H-2A visa petition will be granted, the U.S. Department of Labor must certify that there is an insufficient number of qualified U.S. workers for the position and that the foreign worker’s employment will not adversely effect U.S. workers’ wages and working conditions.

This final rule is a product of the department's review of policy decisions underlying a previous revision of the H-2A regulations published in late 2008. It is intended to strengthen worker protections for both U.S. and foreign workers, increase workers’ wages, and provide greater access to the U.S. labor market. Additionally, it will create a national electronic job registry where job orders will be posted through half of the contract period.

The rule, which will take effect March 15, 2010, provides that American and foreign laborers working in identical occupations for the same employer be paid equally, regardless of their hire date. It also prohibits employers from shifting to employees the costs of recruitment, visa, and border-crossing fees, as well as other U.S. government-mandated fees.

Tags: Agricultural Workers, Department of Labor, Federal Agencies, Fees, Foreign Labor, H-2A, H-2A Final Rule, Labor Certification, Migrant Workers, US Immigration, Visas

DOL Revises Prevailing Wage Determination Policy Guide

Posted on January 11, 2010 by Immigration/Global Migration Group

The U.S. Department of Labor’s Employment and Training Administration recently revised its guidance on prevailing wage determination (PWD) concerning nonagricultural immigration programs (e.g., registered nursing programs). The revised guidance (pdf) discusses:

PWD policy (background and prevailing wage factors);
how PWDs are made (i.e., whether wages are determined by a collective bargaining agreement, or by a Bureau of Labor Statistics or employer survey);
procedural details; and
how to challenge a PWD.

The guidance document also contains seven appendices that provide further guidance, checklists, worksheets and forms.

Tags: Department of Labor, Federal Agencies, Immigration Compliance, Prevailing Wage, US Immigration, Visas

Prevailing Wage Determinations to Be Processed in D.C.

Posted on December 31, 2009 by Immigration/Global Migration Group

The U.S. Department of Labor has provided notice that beginning January 1, 2010, the Office of Foreign Labor Certification National Prevailing Wage and Helpdesk Center in Washington, D.C. will receive and process prevailing wage determination requests for use in H-1B, H-1B1, H-1C, H-2B, E-3 and permanent labor certification programs. In the same notice, the DOL provides guidance about prevailing wage determinations for applications in the Commonwealth of the Northern Mariana Islands, which have been accepted at the center since November 28, 2009.

Tags: Department of Labor, E-3, Federal Agencies, H-1B, H-1B1, H-1C, H-2B, Office of Foreign Labor Certification, Prevailing Wage, US Immigration, Visas

USCIS Temporarily Accepting H-1B Petitions with Proof of Timely Filing of Labor Condition Application

Posted on November 16, 2009 by Immigration/Global Migration Group

U.S. Citizenship and Immigration Services (USCIS) recently announced that it would temporarily accept H-1B petitions for filing without a certified Labor Condition Application (LCA) from the Department of Labor (DOL). This action is being taken in response to public pressure and to the USCIS Ombudsman’s recommendation that USCIS reinstate its practice of accepting an H-1B petition with evidence of a timely filed LCA with DOL. USCIS had affirmed this practice in 1992, and then again in 2001. USCIS has granted this accommodation for a 120-day period, starting November 5, 2009 and ending March 4, 2010.

This temporary processing modification by USCIS will provide welcome relief to employers experiencing delays associated with obtaining LCA certification through the DOL's iCert online filing system. Employers will now be able to meet filing requirements, preserve the legal status of employees, and avoid employment interruptions while DOL resolves LCA processing challenges through its iCert system.

To qualify for this exception, an employer must show that an LCA has remained uncertified for at least seven days from the date of filing. USCIS will reject all filings that do not meet this seven-day rule. In order to prove compliance with this rule, H-1B petitions must include a copy of the DOL's email providing notice of receipt of the LCA.

When an H-1B petition is filed pursuant to this temporary accommodation, USCIS will issue a Request for Evidence (RFE) requesting a copy of the certified LCA. USCIS has stated that employers will only be given 30 calendar days to respond to the RFE with a copy of the certified LCA. Failure to provide a certified LCA within this period of time will result in a denial of the H-1B petition.

Ideally, the DOL will resolve the delays and erroneous denials associated with certifying LCAs before March, 4, 2010, when the temporary USCIS accommodation ends, particularly as the FY2011 H-1B cap opens just a few weeks later (on April 1, 2010).

This entry was written by Ian Macdonald.

Tags: Department of Labor, H-1B, Labor Condition Application, US Immigration, USCIS, Visas

USCIS Ombudsman Makes Recommendations Regarding H-1B Filings Stalled by Wrongly Denied Labor Conditions Applications

Posted on November 3, 2009 by Immigration/Global Migration Group

The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has discovered (pdf) that iCert, the certification process for Labor Conditions Applications (LCA) operated by the Department of Labor, has been generating false mismatches of Federal Employer Numbers. After examining applications filed between April and August 2009, the Ombudsman found that 7% of denials (approximately 2,900 applications) were incorrect. These errors can hinder the ability to timely file original or extension H-1B visa petitions.

Currently, USCIS requires that petitioners include a certified LCA with their H-1B petitions, although the controlling statute, the Immigration Nationality Act, does not require this.

To remedy the situation, the Ombudsman made the following recommendations:

reinstate USCIS’ previous practice of temporarily accepting an H-1B petition with proof of timely filing of an LCA with DOL, and issue a Request for Evidence requiring the petitioner to later provide the certified LCA; and
establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

Tags: Department of Labor, H-1B, Immigration and Nationality Act, US Immigration, USCIS, Visas, iCERT Visa Portal System

DOL Suspends H-2A Final Rule

Posted on June 6, 2009 by Immigration/Global Migration Group

The Department of Labor is suspending the H-2A Final Rule (published on December 18, 2008 and in effect as of January 17, 2009). That Final Rule amended the regulations governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. To ensure continued functioning of the H-2A program, the DOL is republishing and reinstating the regulations in place on January 16, 2009 for a period of nine months, after which the Department will either have engaged in further rulemaking or lifted the suspension.

The notice of suspension (PDF) was published in the Federal Register on May 29, 2009, and the suspension is effective June 29, 2009. In order to answer employers’ questions about the suspension, the Office of Foreign Labor Certification has issued the document “H-2A Notice of Final Suspension: Frequently Asked Questions”(PDF).

Tags: Agricultural Workers, Department of Labor, Federal Regulations, H-2A, H-2A Final Rule, Office of Foreign Labor Certification, Seasonal Employees, Temporary Employees, US Immigration, Visas

Department of Labor Issues FAQs on H-2B Final Rule

Posted on April 25, 2009 by Immigration/Global Migration Group

The Department of Labor (DOL) published a Final Rule on the labor certification process and enforcement for H-2B employment on December 19, 2008, which became effective on January 18, 2009. The Final Rule made some significant changes in the processing of applications for H-2B labor certifications. In response to questions raised regarding the application of the new regulations, the DOL has released (PDF) a list of “Frequently Asked Questions” (FAQs).

The FAQs cover the following topics:

Transition to new procedures (for applications filed on or after January 18, 2009 for employment with start dates before October 1, 2009);
Prevailing wage;
Form ETA9142;
Recruitment;
Recruitment fees; and
Former regulations vs. new regulations.

Tags: Department of Labor, Federal Regulations, H-2B, Labor Certification, US Immigration, Visas

DOL Notice of Proposed Suspension of New H-2A Regulations

Posted on March 23, 2009 by Immigration/Global Migration Group

The Department of Labor (DOL) proposes to suspend for nine months the H–2A regulations published on December 18, 2008, which became effective on January 17, 2009. The amended rules—implemented in the closing days of the Bush administration—were intended to make it easier for agricultural employers to hire foreign workers on a temporary or seasonal basis to fill agricultural jobs where U.S. workers were unavailable. The sweeping changes to the H-2A regulations have proven to be difficult for the DOL to implement.

The January 17, 2009 Final Rules are being suspended for several reasons including: (1) lack of sufficient resources at the DOL to implement the Final Rule and (2) processing delays due to the anticipated influx of applications with the upcoming growing season. The proposed suspension is open for comment for 10 days. If a suspension of the rules occurs, the rules in effect prior to January 17, 2009 will be reinstated. Written comments will only be considered as to whether the DOL should suspend the December 18, 2008 final rule for further review and consideration of issues that have developed since the final rule’s publication. Comments regarding the substance or merits of the final rule will not be considered. Comments may be submitted before March 27, 2009. Comments may be made on the Federal e-Rulemaking Portal at http://www.regulations.gov.

Tags: Agricultural Workers, Department of Labor, H-2A, US Immigration, Visas

Maryland Senators and Congressman Seek Help for H2B Employers

Posted on January 22, 2009 by Immigration/Global Migration Group

A press release issued by the office of Senator Barbara A. Mikulski (D-Md.) states that Senator Mikulski, along with Senator Benjamin L. Cardin (D-Md.) and Congressman Frank M. Kratovil, Jr. (D-Md.), sent a letter to the Department of Labor and the Department of Homeland Security urging them to “use all means necessary” to protect small businesses throughout the country so they can keep their doors open this year. The reason for their concern is that, as of January 8, 2009, the U.S. Citizenship and Immigration Services (USCIS) had already received enough applications to exceed the cap for H2B visas for the second half of fiscal year 2009.

Senator Mikulski said,

Companies in Maryland and around the country are unable to get the H2B visas, and workers, that they need and depend on because of bureaucratic slowdowns. Small and seasonal businesses are counting on us. We need this problem resolved quickly so we can reward people who are playing by the rules, instead of letting them down.

Tags: Department of Homeland Security, Department of Labor, Federal Agencies, H-2B, Homeland Security, US Immigration, USCIS, Visas

New DOL & DHS Regulations to Expand Agricultural Guest Worker Program

Posted on December 15, 2008 by Immigration/Global Migration Group

For the first time in 20 years, the H-2A guest worker program for agricultural employees is slated for reform. On Dec. 11, the Department of Labor (DOL) and Department of Homeland Security (DHS) issued final rules regarding the hiring of foreign agricultural workers, ostensibly to streamline the hiring process of these temporary and seasonal employees. Continue reading entry on Littler's Washington DC Employment Law Update blog.

Tags: Agricultural Workers, Department of Homeland Security, Department of Labor, Federal Regulations, Guest Worker, H-2A, Seasonal Employees, Temporary Employees

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