Highlights of AILA-DOL Meetings – March and May 2001
Posted Jun 08, 2001

From time to time in the MurthyBulletin, we report on discussions between representatives of the American Immigration Lawyers Association (AILA) and officials of government agencies, such as INS. We discuss below some of the items raised during a liaison meeting with the U.S. Department of Labor (DOL). Though the meeting took place on March 22, 2001, preliminary minutes of the meeting became available on May 23, 2001. We also add below some updates from a May 30, 2001 meeting of the Washington DC Chapter of AILA, at which Harry Sheinfeld, Counsel, Office of the Solicitor, U.S. Department of Labor, was the featured speaker.

LCA FaxBack System for H1Bs

As many readers of the MurthyBulletin are aware, prior to filing an H1B petition it is necessary to fax a form known as a Labor Condition Application (LCA) to DOL. DOL then certifies the LCA and faxes it back, for inclusion with the H1B petition package for INS. We have mentioned in several prior articles that the processing time for LCAs has become longer and longer. The current processing time, as of June 4, 2001, is at least six (6) weeks. By law, LCAs are supposed to be processed within seven (7) business days.

DOL has been increasing its staff so that it has the ability to process cases more quickly, and has been providing the necessary training. There are still many mistakes being made by the people who submit the forms to DOL, and DOL personnel have to spend considerable amounts of time contacting these users about problems. DOL has also been looking into the possibility of fitting all the legally required LCA information onto two pages, rather than the current 3-page form. The May 30, 2001 meeting also revealed that many unanticipated technical problems arose when the 3-page LCA was introduced earlier this year. At the time that the 2-page LCA was in use, the system was working quite smoothly, with many LCAs being certified on a same-day or next-day basis.

PERM Program for Labor Certification

We have mentioned in previous issues of the MurthyBulletin that DOL was developing a new, streamlined LC process known as PERM. It would be an attestation-based process, meaning that the employer or attorney would provide information on the job offer and its recruitment efforts, and the case would be approved quickly, with little review; somewhat like the LCA FaxBack procedure. For quality control purposes and to ensure compliance with the law and regulations, DOL would from time to time select a case for an audit and the employer would need to provide more extensive recruitment information.

According to DOL, the PERM program is still "on track" and the concept is apparently supported by the Bush Administration. However, DOL was not able to estimate an implementation date.

Overseas Assignments or Unpaid Leave for H1B Workers

One interesting question asked by AILA attorneys was whether the employer had any obligation to continue paying the wage stated in the H1B petition, when the company sends the employee to an overseas location. Is it permissible to pay the going wage rate in that location? DOL did not have a definitive answer but indicated that they were studying the issue. The concern was whether the employer would be sending the employee abroad to avoid paying him the full prevailing wage amount during "bench" time.

Another question was in regard to unpaid leave. Would an employee request for unpaid leave relieve the employer of the obligation to pay the wage? Again, DOL was concerned as to whether the employer would be pressuring the employee to take leave, for the convenience of the employer. If it is truly a voluntary leave, then it is legitimate for an employer to grant unpaid leave and not pay the employee during that time.

The above issues highlight the concerns of the U.S. Department of Labor and their interest in protecting U.S. workers. DOL has endured some criticism for the breakdown of its system of processing LCAs within the required 7-day time frame as well as its failure to comply with its legal obligations.