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: , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Seventh Circuit Upholds DOL Regulation of Labor Certificates

Posted on August 27, 2009 by Immigration/Global Migration Group

The United States Court of Appeals, Seventh Circuit, has upheld a United States Department of Labor (DOL) regulation amended to limit the validity of foreign worker labor certificates to 180 days after the regulation had taken effect and only if submitted with a visa petition within that time period. A group of businesses had challenged the regulation, arguing that: (1) the DOL exceeded its authority by creating a rule that regulates immigration, and (2) the regulation itself was unlawfully retroactive because it invalidated previously approved labor certificates that were “valid indefinitely.”

The Seventh Circuit held that the DOL had not exceeded its authority, noting that previous DOL policy was not entirely consistent with federal law requiring that labor certificates only be issued if the DOL could demonstrate that (1) there were insufficient numbers of qualified and available workers for the position and (2) the employment of foreign workers would not adversely impact U.S. workers. The amended regulation, however, fulfilled legislative intent by requiring determinations based on true labor market conditions as well as protecting the interests of U.S. workers.

The court further held that the regulation was not retroactive because it did not create new legal consequences for a past act. The court found that the mere act of applying for a labor certificate was not a final event triggering legal consequences. Moreover, the court reasoned that “indefinite” did not mean “permanent” because the duration was “not clearly fixed.” The court concluded that the DOL addressed the issue of “indefiniteness” by prescribing a validity period for labor certificates.

Tags: , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

U.S. Rep. Flake Introduces Legislation to Exempt Foreigners Who Earn a Ph.D. in the U.S. from H-1B Visa Cap

Posted on April 10, 2009 by Immigration/Global Migration Group

On March 30, 2009, U.S. Representative Jeff Flake (R.-AZ) introduced legislation (H.R. 1791) that would amend the Immigration and Nationality Act to authorize “certain aliens who have earned a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics” to be exempted from the numerical caps on H-1B visas. The bill, titled “Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009” (the “STAPLE Act”), was referred to the House Judiciary Committee. In addition to the exemption from the H-1B numerical cap, the legislation also would exempt the specified foreigners from the numerical limitations on permanent residence.

Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link

Another Immigration Bill Increasing Employer Penalties is Introduced

Posted on January 22, 2009 by Governmental Affairs Team

A bill that would amend section 274A(e)(4)(A) of the Immigration and Nationality Act to substantially increase employer penalties for violations was introduced last week by Rep. Sue Wilkins Myrick (R-NC). The 10k Run for the Border Act (H.R. 588) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known. Continue reading entry on Littler's Washington DC Employment Law Update blog.

Tags: , , , , , , ,
  • Email This
  • Print
  • Trackbacks
  • Share Link