Consultation Options

We offer a number of engagement and consultation options. Initial case evaluations and quotes are always free.

Live Chats and Webinars

We provide many opportunities for clients and readers to learn about new developments, ask questions or simply comment. Join us for our weekly live chat or our monthly (or more often) webinars.

Contact and Quote Forms

DOL

Home/DOL

PERM Processing Times (December 3, 2016)

By | 2017-05-20T21:47:00+00:00 December 8th, 2016|Articles, DOL, News, PERM|

Our office handles many ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of December 3, 2016. (more…)

H-1B Dependent Employer – Definition and Responsibilities

By | 2016-08-24T10:00:12+00:00 August 24th, 2016|Articles, DOL, Employers, H-1B, News|

The definition of an H-1B dependent employer is important in a number of ways, including due to the H-1B regulations’ certain additional recruitment and attestation requirements to such employers.   For H-1B employers, it is important to understand the definition and apply the analysis during each H-1B filing. (more…)

Current PERM Processing Times (January 4, 2016)

By | 2017-05-20T21:47:07+00:00 January 21st, 2016|Articles, DOL, News, PERM|

Our office handles many ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of January 4, 2016. (more…)

PERM, H-1B and Prevailing Wage Case Processing Statistics from the Department of Labor (FY2015 Q4)

By | 2017-05-20T21:47:08+00:00 November 5th, 2015|Articles, DOL, H-1B, News, PERM|

The Department of Labor has provided some updates for the fourth quarter of the Fiscal Year 2015 (July 1 to September 30, 2015) on their processing of PERM, H-1B LCA and prevailing wage determination cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (Fourth Quarter, 2015 Fiscal Year)

PERM

According to the PERM case report, during the quarter, there were 23,203 new cases received (an increase of 5% from the prior quarter but a 17% increase in the number of filing compared to the fourth quarter of the year prior – fiscal year 2014), 24,853 certified (notable increase of 40% compared to the prior quarter), 2,008 denied (slight increase compared to the previous quarter)  and 1,096 withdrawn (about the same as the prior quarter).

There are 58,926 applications pending as of September 30, 2015 which is notable decrease of about 15% compared to the prior quarter.   Out of these cases, approximately 77% are in analyst review stage (increase by several percentage points), 13% under audit review (significant decrease, from 22% three months ago) and 9% on appeal (no change).

CILG Comment:  these numbers indicate that the rate of filings and approvals has increased while the rate of cases in audit has decreased while denials have remained steady.   This suggests that DOL is continuing to put efforts on clearing audit cases but also that an increasing number of cases are being approved without an audit (at least during the last quarter).

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the fourth quarter, there were approximately 43,000 prevailing wage determination requests filed — of those, 37,757 were for PERM cases (increase of 6% compared to the previous quarter but increase of 17% compared to the prior year’s period), 1,271 were for H-1B cases (decrease of 10% over from the prior year) and 4,211 were for H-2B cases (increase of 29% year-over-year).     In terms of activity, 35,677 prevailing wage determinations were issued during the third quarter and the pending load has increased from 23528 to 28,375 (or by about 94% compared to the previous year).

CILG Comment:   we are seeing a notable increase and trend in the rate of prevailing wage filings, especially for PERM cases.  The fact that the pending prevailing wage cases has doubled compared to the prior year’s period suggests that there will be longer prevailing wage wait times and, possibly, a higher number of PERM applications resulting in longer PERM processing  times.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers and the top positions and geographic areas.    The number of LCA filings is lower compared to other quarters during the year, and especially Q2 of 2015 (which included the H-1B cap season).  Even then, there were 103,142  H-1B LCA filings in the fourth quarter, noting a slight decrease from 115,837 LCAs filed during the third quarter of the year.   However, compared to the same period of last year, there is a ten percent increase in the number of LCA filings.  During the quarter, there were 100,801 LCAs certified for 207,115 positions (one LCA can include more than 1 position).

According to DOL, 100% of the LCAs are processed timely within seven days of receipt.     The rate of LCA denial is fairly low (1,880 out of 110,925 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The fourth quarter of the FY2015 shows a notable increase in PERM filings and PERM approvals.   The rate of audits has gone down slightly.    There were more prevailing wage filings for PERM cases which will ultimately translate to increased number of PERM filings.   We are hopeful that DOL would continue to work on decreasing its load and processing times, especially for the PERM cases (see the most recent PERM processing times report).   There were also more LCAs, most likely attributed to the Simeio decision and subsequent USCIS policy regarding H-1B amendments for worksite changes.

We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again, contact us, or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

Current PERM Processing Times (October 6, 2015)

By | 2017-05-20T21:47:08+00:00 October 13th, 2015|Articles, DOL, News, PERM|

Our office handles many ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of October 6, 2015. (more…)

Update on October 2015 Government Shutdown: Crisis Averted (or at least delayed) Until December

By | 2017-05-20T21:47:09+00:00 October 1st, 2015|Articles, DOL, Employers, Government Shutdown, News|

Many of our clients and readers have been anxiously awaiting news from Washington, DC regarding the funding of the federal government and the threat of shutdown and how it would impact immigration processing (see our impact analysis from September 23, 2015).    We have mixed news to report.

Good News – Spending Bill Passed to Fund the Government

We are happy to report that the government will not be shut down on October 1st since Congress was able to pass a federal government spending bill which funds the government and avoids a shutdown.    The spending bill was passed only seven hours before the deadline – a somewhat expected move after Speaker Boehner’s resignation but still a timeline which caused a lot of concern to many affected by a possible government shutdown.

Bad News – The Spending Bill Lasts Only Until December

The bad news is that the bill was a temporary spending measure to keep federal agencies operating through December 11.   This means that we are likely to be facing a political showdown and a threat of government shutdown again in just a couple of months from now, right before the holidays.

Conclusion

Due to the continued uncertainty with respect to the continuing government operations in December, we recommend employers and applicants, especially those who will  who will rely on the Department of Labor’s PERM and H-1B/LCA systems, to plan and file their cases before December to minimize the chance of disruption due to a possible December shutdown.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by a possible government shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

October 2015 Government Shutdown and Immigration: (How) Will It Affect Me?

By | 2017-05-20T21:47:09+00:00 September 23rd, 2015|Articles, DOL, Government Shutdown, News, News Alert|

Update (10/01/2015):  The government shutdown has been averted as a result of the continuing resolution funding the government through December 11, 2015.    Unfortunately, this is a short-term solution and we are likely to be facing the same concerns and threat of shutdown in early December.

While we are hopeful that this is not the case, it appears that the chances of the U.S. federal government shutting down on October 1st (the beginning of the new fiscal year) are increasing.   We would like to provide some information as to how a possible government shutdown would affect the immigration cases pending or to be filed shortly.   Our office has been receiving an increasing number of inquiries from alarmed clients as to what would happen should the federal government close on October 1 if a deal is not reached on the federal government’s budget.   (See latest Google News)

How Would a Government Shutdown Affect Immigration Cases?

There is no simple answer to this question, as some federal government agencies would continue to operate, some would close partially and some would close almost completely.  Since the last time this kind of shutdown happened just a couple of years ago (in 2013), we can look back at what happened then to anticipate what kind of services and agencies would remain open and what would close.  With respect to immigration, it appears that there would be some disruptions to pending cases and upcoming filings.   Generally, the government is likely to stop all non-essential, all non-self-funded and all non-contractually funded services.

USCIS Cases

Since USCIS is funded primarily through application fees, it is expected that most of its services and centers would operate normally, perhaps with slightly diminished staff.  Because USCIS is a government agency which relies on other government agencies to perform its services, there may be certain disruptions; however, overall, case processing at USCIS is expected to resume.   Border processing of immigrants and border enforcement activities would continue as they are deemed “essential.”   The E-Verify system is likely to be shut down and unavailable during a period of government shutdown but employers should still continue to process Form I-9s even if E-Verify is not operational.

Department of State – Visa Applications at Consulates and at NVC Should Continue

If the 2013 Shutdown is a guide, the Department of State (DOS) is expected to continue processing visa applications at a normal (or close to it) page.   It may still be prudent to try to avoid applying during a period of shutdown and perhaps expedite applications, if possible.

Cases processed at the National Visa Center (NVC) should not be affected as well by the shutdown as they are mainly processed by contractors under existing funding agreement.

Generally, the State Department has been designated to be a “national security agency” which means that it would continue working throughout the shutdown.   However, in the cases where State Department operations are in other federal buildings which are affected by the closure,  such State Department operations may be disrupted because of lack of access to the facility.

Department of Labor – LCA, PERM and Audits

Unlike USCIS and the State Department, the Department of Labor (DOL) is likely to be significantly affected by the (possible) shutdown and its LCA/PERM operations (and websites) are likely to be suspended for the duration of the shutdown.

Based on what happened during the 2013 Shutdown, in case of a shutdown, no new LCAs can be filed and pending LCAs will not be subject to the seven business day review requirement and will not be reviewed and certified until DOL reopens.  This is a significant problem for employers and employees who need to have a new LCA filed and approved in connection with an expiring H-1B petition or in connection with an H-1B amendment.    Without a certified LCA,  an H-1B petition with USCIS cannot be filed.    This can create significant challenge to many employers and individuals whose H-1B petitions must be filed or amended and especially for those individuals whose status may be expiring.    In the past and in exceptional circumstances, USCIS has agreed to accept H-1B petitions without a certified LCA; however, USCIS has not yet confirmed (as of the time of this article) that they would do so this time around.

Similarly, in an event of a shutdown, it will not be possible to file new PERM cases and pending PERM cases will be put on hold.   This also can be a significant problem to many because the PERM process has very strict deadlines and a PERM case (and its entire recruitment) may have to be redone if a PERM application cannot be filed within the applicable filing window.   Additionally, filing a PERM by a certain date is critical for many H-1B workers who are seeking to be able to continue extending their H-1B petitions beyond their six-year H-1B limit.     A delay in filing a PERM may cause certain H-1B workers to run out of H-1B time without an ability to continue extending H-1B on the basis of a PERM pending for more than 365 days.

On a related note, prevailing wage determination requests will also be shut down so no new requests can be filed and pending requests will be on hold.    A delay in the issuance of a prevailing wage determination may affect a number of PERM cases where there is a timing concern – such as six-year H-1B limit or expiring PERM recruitment.

Shutdown in DOL would mean that processing times and backlogs would be significant once the Government and DOL reopen.    If there is a shutdown, even after DOL reopens we expect that there will be a rush of LCA, prevailing wage and PERM filings.   Similarly, the cases already pending will have to be prioritized and reviewed.    This is likely to contribute to a delay in getting LCAs, prevailing wage requests and PERMs certified (especially since the PERM processing times are substantial already).

Conclusion

At this time, a week before October 1st, it is not clear whether there will be a shutdown.  Also, it is not clear what may be the full extent of the federal government shutdown.   But if a shutdown occurs, we anticipate some significant disruptions to government services affecting immigrants.  Perhaps the biggest disruption would be the delays or inability to file H-1B and/or PERM labor certifications.   While some of these affected cases would be able to withstand delay, there would be a number of urgent visa or petition cases which would need to be filed or processed.   The shutdown would also create a significant increase in the processing time backlogs for almost all immigration cases.   We urge clients who have time-sensitive cases which may be affected by a possible government shutdown to plan accordingly.

We stand ready to help analyze any cases which are time-sensitive and may suffer severe negative impact by the shutdown.  Please feel free to contact us.   Our office would also continue to monitor developments and provide timely updates.  Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

DOL is Coming For a Worksite Visit! Now What? Anatomy of a DOL Site Visit

By | 2017-05-20T21:47:14+00:00 April 17th, 2015|Compliance, DOL, Employers, News|

The H-1B classification was created to help U.S. employers hire talented foreign workers to fill professional or “specialty occupations” positions such as engineers, scientist, medical professionals, and computer programmers. Under the H-1B program the Department of Labor’s Wage and Hour Division (DOL-WH) is responsible for ensuring workers are receiving the wages promised on the Labor Condition Application (LCA), and the employee is working in the occupation and location specified. DOL-WH can only initiate H-1B related investigations as a result of one of four factors:

  • DOL-WH receives a complaint from an aggrieved person or organization;
  • DOL-WH receives specific credible information from a reliable source (other than a complainant) that the employer has failed to meet certain LCA conditions, has engaged in a pattern or practice of failures to meet such conditions, or has committed a substantial failure to meet such conditions that affects multiple employees;
  • The Secretary of Labor has found, on a case-by-case basis, that an employer (within the last five years) has committed a willful failure to meet a condition specified in the LCA or willfully misrepresented a material fact in the LCA. In such cases, a random investigation may be conducted; or
  • The Secretary of Labor has reasonable cause to believe that the employer is not in compliance. In such cases, the Secretary may certify that an investigation be conducted.

When violations are found, DOL-WH may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. DOL-WH may also impose other remedies, including the payment of back wages. For more information regarding DOL-WH enforcement authority please click here.

How to Prepare for a site visit.

In light of possible site visits, it is now more important than ever for businesses to make sure that they have an effective immigration compliance plan, the following steps will help you and your business prepare for an unexpected site visit:

  • Establish a policy for handling such visits, ensuring ahead of time that all relevant records in terms of business, tax as well as human resources are up to date and easily accessible and determining which employees are authorized to speak with an inspector;
  • The most common mistake usually involves the LCA. Sometimes employers don’t realize they are not complying with the terms of the LCA (e.g. failing to update the LCA when the employer changes an employee’s permanent work address), other times employers intentionally fail to pay as required. These mistakes, even when made unintentionally, can lead to costly civil and criminal penalties.
  • The Department of Labor also requires H-1B employers to maintain records to comply with other Federal laws (e.g. the Fair Labor Standards Act, the Internal Revenue Code). For a complete list of the records that must be kept (and made available) by an H-1B employer, please click here;
  • You should notify USCIS by letter when there has been any “material changes” to the terms and conditions of an approved H-1B. Accordingly, if you terminate an H-1B employee or they quit, you should send a certified letter to the USCIS service center that approved the H-1B;
  • Monitor what H-1B employees are saying about you one the internet. Websites like goolti and Desi Crunch host discussions about H-1B employers.

DOL Site Visits: What to Expect.

Site visits have increasingly become a normal part of the H-1B visa process, these visits are conducted by DOL employees or hired contractors that conduct investigations and site visits on behalf of the DOL. DOL employees will normally present a badge or other official identification, contractors will normally present their business card with a 1-800 number, which will verify the contractor is conducting the visit on behalf of the DOL.

In most cases, these visits will be intended to simply verify the facts contained in an immigration filing, and the existence of the employee the H-1B petition was submitted for. Investigator will normally ask to meet with the signer of the H-1B petition, or other employees the investigator believes to be an appropriate company representative. In some cases they may also want to meet with the employee sponsored in the H-1B petition to verify their position, requirements of the position, salary, start date and work location.

Questions asked will generally be relating to the information provided on the H-1B petition, clients have also reported being asked for specific information about the company, including:

  • Information on the number of H-1B petitions the employer has filed, and the current number of H-1B employees currently working at the company;
  • Specific information about one or more H-1B employees, including their job duties, credentials, work experience, work location and salary;
  • Copies of the employee’s W-2 and paystubs to verify they are working for the employer and being paid an appropriate salary with respect to the LCA.

It is important to note that you are not required to give investigators any information about your business not relating to H-1B petition. Accordingly, it makes sense to have specific information and paperwork readily available for the investigator, rather than allowing them full access to an employee’s personal file and your business’s payroll records.

How we can Help

The Capitol Immigration Law Group PLLC in Washington DC and Bethesda Maryland is a professional immigration law firm.   Our depth and broad range of our practice enables us to represent companies anywhere in the country.   We can assist in formulating or reviewing the companies’ internal HR related policies, and providing assistance and explanation through the course of such visits.

Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

Current PERM Processing Times (February 6, 2015)

By | 2017-05-20T21:47:15+00:00 February 12th, 2015|Articles, DOL, News, PERM|

Our office handles a substantial number of ETA Form 9089 – Permanent Labor Certification (“PERM”) applications and we are closely monitoring the current PERM processing times not only for the benefit of our clients but also to be able to predict longer-term trends in PERM processing.

The Department of Labor (“DOL”) has provided an update on the current PERM filing and processing statistics in addition to the processing dates as of February 6 2015.

Current PERM Processing Times

This month does not bring much change in the PERM processing times – regular PERM cases still take around five months.     The processing time of PERM applications in audit increases by one month compared to our prior monthly report.

The processing times, as reported by DOL, are as follows:

  • Regular processing: September 2014.  DOL is processing PERM applications with priority dates of September  2014.  There is no change in the expected duration of a PERM case compared to the January 2015 report.    Accordingly, regular PERM processing times should be around five months.   Our office has experienced PERM approvals consistent with this timeline and we can confirm it.    The PERM processing times have remained steady at five months — we hope that DOL will be able to decrease their regular PERM processing times over the next months.
  • Audited applications: June 2013.  DOL is processing PERM audits which have a priority date (date of filing of the PERM application) of June 2013.  There is a delay of one additional month in the expected PERM audit review time compared to last month’s report.    Accordingly, audited PERM applications are processed approximately 20-21 months after the initial PERM was filed and the priority date established.
  • Appealed applications (requests for reconsideration to the Certifying Officer): February 2015.  DOL is processing PERM appeals (requests for reconsideration to the certifying officer) which were appealed in February 2015.  There is no change in this category, compared to our last report.    Accordingly, PERM requests for reconsideration are processed within approximately a month after PERM appeal (motion for reconsideration to the Certifying Officer) is filed.
  • “Government error” appealed applications. DOL has indicated that PERM appeals in this category are reviewed on a 30-45 day timeline.   However, after filing an appeal, DOL does not make an indication whether a PERM appeal is accepted to be processed under the  “government error” queue or under the regular appeal queue.   As a result, DOL has indicated that the only way to know whether a PERM appeal has been accepted for processing under the “government error” queue is to wait for 45 days for response.  If the PERM appeal is reviewed within this time, this would be an indication that a PERM appeal has been accepted (and reviewed) under the “government error” queue.  If no response is received 45 days after filing of a PERM appeal, then this should be an indication that the PERM is pending under the regular appeals queue.

Conclusion

The February 2015 PERM processing times report shows that the PERM processing times remain largely unchanged over the last couple of months.  We had noticed gradual decrease in the PERM processing times earlier in the year; however, the last one or two monthly reports suggest that the processing times remain steady.      We are hopeful that the trend of improvement in the processing times would continue in the next months.

Our office has developed a great practice handling PERM filings and/or audit/appeal responses so please do not hesitate to contact us if we can help you.  Also, we will continue monitoring the PERM processing times and analyze any updates.  Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

PERM, H-1B and Prevailing Wage Case Processing Statistics from the Department of Labor (FY2015 Q1)

By | 2017-05-20T21:47:16+00:00 January 29th, 2015|Articles, DOL, H-1B, News, PERM|

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2015 (October 1, 2014 to December 31, 2014) on their processing of PERM, H-1B LCA and prevailing wage determination cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (First Quarter, 2015 Fiscal Year)

PERM

According to the PERM case report, during the quarter, there were 23,133 new cases received (an increase of 7% from the prior quarter and a significant 31% increase compared to the same period of the previous year), 16,192 certified (slight increase over the previous quarters), 1,322 denied (increase, but in proportion of the rate of new filings) and 1,104 withdrawn (about the same as the prior quarter).

There are 64,810 applications pending as of December 31, 2014 which is about 8% increase in the pending case load.   Out of these cases, approximately 60% are in analyst review stage (no change to prior quarter), 30% under audit review (no change) and 8% on appeal (slight decrease.)

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 38,000 prevailing wage determination requests filed — of those, 29,870 were for PERM cases (increase of 27% compared to prior year’s period), 1,476 were for H-1B cases (increase of 5%) and 6,334 were for H-2B cases (increase of 38%).     In terms of activity, 31,946 prevailing wage determinations were issued during the first quarter and the pending load has increased from 14,619 during the prior quarter to 18,282 in the first quarter of FY2015.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers and the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is lower compared to other quarters during the year, and especially Q2 of 2014.  Even then, there were 80,520  H-1B LCA filings in the first quarter, noting a decrease of about 13% compared to the prior quarter.   During the quarter, there were 77,691 LCAs certified for 169,282 positions (one LCA can include more than 1 position).

According to DOL, 100% of the LCAs are processed timely within seven days of receipt.     The rate of LCA denial is fairly low (1,761 out of 89,367 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The first quarter of the FY2015 shows a significant increase in the number of DOL filings in a number of categories.  Perhaps most notable is the increase in PERM filings – 31% increase over the prior year and 7% increase over the prior quarter.   Similarly, the PERM prevailing wage requests rose by 27% over the prior year period, signaling continued strong rate of upcoming PERM filings.   Thus, in turn, is likely to translate increase in the PERM case processing times.    We are hopeful that DOL would continue to work on decreasing its load and processing times, especially for the PERM cases (see the most recent PERM processing times report).

We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again, contact us, or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.