DOL Discusses Certain Issues
Posted Jan 25, 2002
Although representatives of the American Immigration Lawyers Association (AILA) and the U.S. Department of Labor (DOL) met on November 30, 2001, the minutes of the meeting were only released in January 2002. In those meetings, the DOL responded to specific questions and issues raised by AILA. We have summarized some items from those meetings of particular interest to MurthyBulletin and MurthyDotCom readers.
Web-Based Processing of H1B LCAs
The Department of Labor advised that, although they are establishing a proper legal basis for web-based processing of Labor Condition Applications, the system is not immediately available, due to technical issues. The DOL is beta-testing the system and will eliminate “bugs” before making it available for general use.
DOL To Consider Expedites of Labor Certifications for Green Card
The DOL is considering some suggestions by AILA with respect to criteria for expedited processing of Labor Certifications. At present, labor certifications are processed solely on the basis of filing date. Included in the suggested criteria were: labor certifications filed for persons with H-1 status reaching the six-year limit; cases in which children are “aging out” (turning 21 years of age); and cases filed for individuals in removal proceedings. The Department of Labor did not appear to be receptive to expediting labor certifications for individuals with H-1s reaching the sixth year. Under the American Competitiveness in the Twenty First-Century Act (AC21), these individuals are eligible for an extension of their H-1 status if the labor certification case was started one-year prior to the request for H1B extension and the person has an I-140 (Petition for Alien Worker) either pending or approved. This stage requires approval of the labor certification. AILA explained that problems arise when extended delays in approving the labor certification make it impossible to reach the I-140 stage before the H1B six-year limit is reached. The DOL stated, in essence, that since Congress did not provide for expedited treatment of labor certifications under AC21, expediting under these circumstances would “go behind the statute.” Although the DOL indicated that they would review the expedite criteria, they also said that such a policy “will be considered a dramatic change in policy” and that it would be subject to “a stringent internal review process.”
Revision and Uniformity in RIR Procedures Based on Economy
Due to the current economy, various regional DOL offices have revised procedures for the required advertising in labor certification cases processed using the Reduction in Recruitment (RIR) procedure. This procedure allows for prior recruitment and advertising by the employer of the position that forms the basis of the Labor Certification. With regard to the required recruitment documentation, the DOL is considering establishing more uniformity among states to establish a pattern of recruitment.
DOL Hiring to Review LC Cases
On a positive note, the Department of Labor advised that they are trying to fill job vacancies in order to help with the backlog problems. The Department of Labor received a large number of cases filed to meet the April 30, 2001 deadline for relief for persons who are out-of-status. In addition to this April 30th, Section 245(i) “bubble” of cases, they are seeing a dramatic increase in usage of H2B cases. This is a result of post-9/11 employer concerns regarding the legal status of their workforce. The H2B case is filed for a temporary, non-professional worker.
DOL Processing Times on Newly Improved DOL WebSite
As processing times are always a concern to MurthyBulletin and MurthyDotCom readers, we want to make you aware of the newly improved DOL WebSite which contains information regarding processing times for labor certification cases, and other matters within DOL's purview.
We will post further updates in the MurthyBulletin and on MurthyDotCom with respect to changes in policy and procedure of the Department of Labor. © The Law Office of Sheela Murthy, P.C.
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