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PERM FILINGS IN THE WAKE OF THE iCert BLACKOUT

Last month’s government shutdownmade it impossible to file PERM Applications. The problem has continued into November, as the iCert portal has beeninundated with a large volume of filings. The Department of Labor fortunately has issued a blog posting explaining thatEmployers and Employees will not be prejudiced.

According the blog posting, any PERMfiling on or before November 14, 2013 will be considered timely filed even ifthe PWD or recruitment has nominally expired.  The iCert system will warn the user that theapplication contains information that will cause the application to be denied,but such an application will not be denied for this reason.  This accommodation applies only to PERM applications that had timely recruitment or prevailing wage determinationsduring the shutdown period and are now unsuitable for filing due to expiredrecruitment or prevailing wage determinations.

Similarly, any response due to the DOLbetween October 1 -18, 2014 will be deemed timely filed if received at the DOLprior to November 14, 2013.

The DOL blog posting also notes thatany document that was filed with their office between October 1 – 18, 2013 willbe given a receipt date of October 18, 2013. Since October 18, 2013 is before November 14, all of these documents arealso timely.

BOO-SILLO UNKENHOLT

Every year our office transforms for a few days from Musillo Unkenholt to Boo-Sillo Unkenholt.  Check out our Facebook page to see more pictures of our Halloween-themed office.

IS CIR ALIVE OR DEAD?

Withthe government shutdown ended, the conventional wisdom is that the RepublicanParty’s strategy backfired.  The RepublicanParty’s approvalratings have plummeted with the American public.   

Moremoderate forces, suchas Reps. Mario Diaz-Balart (R-FL), Paul Ryan (R-WI), and Eric Cantor (R-VA)think ComprehensiveImmigration Reform may be the way for the Republicans  to stop the falling polling numbers. 

Thepolitics on this will be the key.  On onehand, this may be Maj. Leader John Boehner’s (R-OH) last chance to salvage hislegacy.  On the other hand, a substantialrift has developed within the GOP ranks. Tea Party members, whose unofficial leadership includes Sen. Ted Cruz(R-TX) and Sen. Mike Lee (R-UT), contend that the shutdown strategy waseffective and likely will not seek to compromise on immigration reform.  One interesting development may be that whileSen. Cruz remains popular, Sen.Lee’s own ratings have plunged.  Hisfellow Utah Senator, Orrin Hatch (R-UT), has refusedto endorse him for re-election.

TheDemocrats seem like they are ready to deal. If Pres. Obama and the Democratic leadership can get a compromise on immigrationit would cement two of Pres. Obama’s prime domestic policy aims.  The next few weeks will be important.  No pundits believe that a ComprehensiveImmigration Reform bill that drags into 2014 has much of a chance at survival.

GOVERNMENT SHUTDOWN ENDS; SERVICES SLOWLY COMING ON-LINE

Late yesterday theSenate and House each passed a budget bill, which was signed by PresidentObama.  The bill’s signing ends the twoweek federal government shutdown.  The shutdownobstructed many immigration services, notably the Departmentof Labor’s iCert system, which was shuttered.  Through the iCert system employers and theirlawyers apply for Labor Condition Applications (LCAs), Prevailing Wage Determination(PWDs) and Permanent Employment Labor certification (PERM).  The discontinuation of these programs meantthat H-1Bs and PERM-based green card applications effectively stopped.    
As of this writing,the iCert system remains inoperable.  Itis expected that the iCert system will commence operating within 24 hours.  At that time MU Law immediately will beginfiling LCAs, PWDs, and PERM applications. We are prioritizing those matters with a legal deadline or businessnecessity. 
Other immigrationservices were slowed by the shutdown.  Itis expected that those services should return to normal processing times in thenear future. 

I-9 TIPS FOR STAFFING COMPANIES

The US Immigrationand Customs Enforcement (ICE) has recently announcedan increase in Form I-9 enforcement. Form I-9 completion and retention is often problematic for companies whoplace workers at third-party worksites because the Form I-9 documents must beseen in person by the employer or the employer’s representative.  The April 2013 update to the US government’s M-274, Handbook for Employers,reconfirmed the best practice for Form I-9 completion in these difficultsituations. 

In theseinstances, the best practice is for the employer to specially designate someoneto personally review the documents and complete Form I-9, Section 2, Employer orAuthorized Representative Review and Verification.  Ideally this person should be a NotaryPublic, although the rule allows anyone acting on the employer’s behalf, suchas another employee at the worksite.  

NOVEMBER 2013 VISA BULLETIN

The Department of State has justreleased the November 2013Visa Bulletin.  This is the second Visa Bulletin of the 2014 US FiscalYear, which began on October 1, 2013.  

The All Other Countries EB-3 date jumped about three months from July 2010 to October 1, 2010.  The Chinese EB-2 and EB-3 dates each progressed several months.

Unfortunately the Indian and Philippine EB-2 and EB-3 remained stuck exactly where they were for the October 2013 Visa Bulletin.


Here is the chart:


November 2013 Visa Bulletin
All Other Countries China India Philippines
EB-2 Current 08OCT08 15JUN08 Current
EB-3 01OCT10 01OCT10 22SEP03 15DEC06

MANAGING LCA ISSUES DURING THE GOVERNMENT SHUTDOWN

The issues described in this MU Visa Advisor are complex and very much driven by the facts of your case.  Please do not hesitate to contact MU Law if youhave any questions about these issues.
TheFederal Government Shutdown has caused the Department of Labor to furloughabout 80% of its workforce.  As a resultthe DOL’s iCert System, which is the manner through which LCAs are filed, hasbeen turned off.  It is impossible tofile LCAs, leading to many questions from H-1B employers. 
Background: The LCA System
TheLabor Condition Application (LCA) is the centerpiece of the H-1B program.  It serves two primary functions.  First, it forces the H-1B employer to certifythat the wage that it is offering to pay the H-1B worker is not lower than similarUS workers.  Second, the LCA includes amandatory mechanism whereby H-1B employers must notify potential US workers oftheir right to contact the Department of Labor (DOL) if they believe that theH-1B employer is engaging in prohibited behavior.
Thereare two ways that the LCA is utilized in the H-1B process.  First, new H-1B petitions must be submittedwith an LCA that has been certified by the DOL. Second, if an employee is going to change worksites, the employer mustprovide new Notice to the workers at this new worksite.  In some instance, the H-1B employer must filea new LCA with the DOL and wait the seven days for the DOL to certify the newLCA.  In other instances, the H-1Bemployer must not only obtain a new certified LCA but must also file a newH-1B.
The Government Shutdown
Unfortunatelywith the governmentshutdown the DOL has shuttered the LCA system.  It is impossible to file LCAs.  The DOL has not given the public any guidanceon how to handle new H-1B petitions nor how to handle new situations where anew LCA is required.
Onaccount of the fact that LCAs cannot be filed, H-1B employees should not changeworksites in instances where a new LCA would normally be required.  This is the safest approach.  Once the government shutdown ends, H-1Bemployers can file an LCA and the employee can move once the new LCA iscertified and in place.
Onthe bright side there are some instances when a new LCA is not required. 
  •  WhenH-1B workers change worksites, but the new worksite is still within the priorLCA metropolitan area, a new LCA is not required.  An H-1B employer must still post notice atthe new worksite. 
  •  TheLCA rules allow H-1B employees to work at new worksites when the new worksiteis peripatetic or very short-term.  Forexample a new certified LCA is not required if an H-1B employee isattending meetings for a few days in a new location.

Ifbusiness needs demand that an H-1B must change worksites, then the H-1Bemployer must be aware that it may be technically violating law, although a legalargument could be made that compliance with the law was impossible on accountof the shutdown.  Penalties can rangefrom $1,000 – $35,000 per violation.  Debarmentfrom the H-1B program could also occur.  Afterconsidering these potential penalties, an H-1B employer still feels compelledto move the H-1B worker, we urge that H-1B employers take all three of these additionalmeasures to mitigate risk:
·        Makesure to post LCA posting.  Even though wewould not be able to file an LCA, we would still be able to post Notice at thedestination worksite.  We can prepare theNotice Posting for you.
·        Filean LCA at the conclusion of the shutdown.

·        Filean amended H-1B at the conclusion of the shutdown and the certification of thenew LCA.

WELCOME H-1B WORKERS

Lost amid the federal government shutdown was the fact that the new fiscal year began on October 1.  With that date thousands of H-1B workers began their H-1B status.  


Those who obtained H-1B visas via overseas US Consulates and Embassies were eligible to enter the US, generally after September 20.  People in the US in other status — e.g. F-1, Students; H-4, Derivative spouses — had their nonimmigrant status change by operation of law on October 1. 

H-1B employers are reminded to update their Form I-9s to reflect these employees new H-1B nonimmigrant status.  The USCIS increasingly is auditing companies I-9 files and issuing fines to the non-complaint. (Although one piece of good news from the shutdown: DOL investigations have been suspended.)

US GOVERNMENT SHUTDOWN IMPACTS SOME IMMIGRATION SERVICES

Congress’failure to establish a budget for Fiscal Year 2014 (start date, October 1,2013) has an impact on some areas of immigration.  If you have any questions about how the governmentshutdown may impact your petitions, please contact Musillo Unkenholt.
United States Citizenshipand Immigration Services:  USCIS operations continue despite the FederalGovernment shutdown, because fee-for-service activities performed by USCIS arenot affected by a lapse in annual appropriated funding.  H-1B, L-1, I-140, and I-485 petitions and applicationsare expected to continue processing with little impact as a result of thefederal government’s shutdown.
All USCIS offices worldwide are open for interviews andappointments as scheduled. E-Verify is an exception and is unavailable duringthe shutdown. For more information about how the shutdown is effecting E-Verifyplease visit www.dhs.gov/e-verify.
Department of Labor: Most DOL functions that impact immigration will stop workingas a result of the federal shutdown.  TheDOLwill neither accept nor process any applications or related materials (suchas audit responses), it receives, including Labor Condition Applications,Applications for Prevailing Wage Determination, Applications for TemporaryEmployment Certification, or Applications for Permanent EmploymentCertification. The DOL’s web site, including the iCERT Visa Portal System and the PERM system, have become static andare unable to process any requests or allow authorized users to access theironline accounts.
Department of State: The Department will continue as many normal operations aspossible; operating status and available funding will need to be monitoredcontinuously and closely, and planning for a lapse in appropriations must becontinued. Visa issuance will be available in consulates that have adequatefunding to continue operating.  Please contact our office to determine ifthe consulate you plan to attend will continue operating. 
Customs and Border Patrol: Inspection and law enforcement are considered”essential personnel,” though staffing may be more limited thanusual.  The borders will be open, and CBP is unsure of how the shutdownwill affect the processing of applications filed at the border at this time.
State Agencies:  State agencies, such as driver’s licenses and professional licenses(e.g. Registered Nurse, Physical and Occupational Therapy licenses), are notimpacted by the federal shutdown.

ALL IMMIGRANT VISAS HAVE BEEN USED FOR THIS FISCAL YEAR

AILAhas confirmed with the State Department that all of this fiscal year’simmigrant visas have been used.  This isnormal in September.  The US Fiscal Yearends on September 30. 
USCIS will continueto process pending adjustment cases, and is able to submit visa number requestsfor all cases which are being finalized.  The State Department will place requests in a“Pending Demand” file.  Eligible caseswhich have been submitted to the State Department that are within the Octobercut-off dates will be automatically authorized effective October 1, 2013.
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About Us

Musillo Unkenholt LLC is a full-service immigration law firm headquartered in Cincinnati, Ohio, serving clients throughout the United States and the world.

Our attorneys have vast experience in an array of immigration processes.

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302 West Third Street, Suite 710
Cincinnati, OH 45202

Phone: 513.381.VISA (8472)

info@muimmigration.com

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