Until very recently, Labor Condition Applications (LCA’s) were taking the full 7 days to get approved (Certified). We recently saw this improve to 4 days. Our ETA 9035 petitions filed on 3/15/2010 were certified on 3/19/2010. Let us hope that this processing time keeps improving.
News Archive for the ‘H-1B Visa’ Category
LCA’s approved in 4 days
Saturday, March 20th, 2010AILA’s response to the 1/8/10 Neufeld Memo
Saturday, March 20th, 2010AILA (American Immigration Lawyers Association) wrote a response to the 1/8/10 Neufeld Memo. Please click here to view.
iCERT system is back online
Thursday, February 4th, 2010The iCERT system, used for H-1B Visa LCA’s and PERM prevailing wages (Form 9141), is now back online.
We are experiencing a 7 day turnaround for H-1B Visa LCA’s (ETA 9035).
We have yet to receive a prevailing wage determination (Form 9141) from the iCERT system. The iCERT system replaced the State Prevailing Wage system on 1/1/10.
iCERT system is currently offline
Tuesday, February 2nd, 2010From iCERT:
Update Tuesday February 2, 2010 10:45am EST.
The iCERT system is currently experiencing technical difficulties. We are aware of the situation and are working to resolve the issues as quickly as possible. We will update this message periodically, as new status becomes available or we have a projected uptime for the system. For specific questions on your application, application status, or other questions that do not pertain to the outage, please contact the OFLC National Processing Center at lca.chicago@dol.gov for H-1B issues or the OFLC National Prevailing Wage and Helpdesk Center at flc.pwd@dol.gov for Prevailing Wage questions.
Thank you for your understanding in this regard and we apologize for any inconvenience.
When Are Beneficiaries of a J-1 Waiver Exempt from the H-1B Cap
Friday, January 15th, 2010The Helpful Filing Tips provided by the Vermont Service Center (VSC) address how to complete Part C, Item 4 of the H-1B Data Collection and Filing Fee Exemption Supplement. That section asks:
“Is the beneficiary of this petition a J-1 nonimmigrant alien who received a waiver of the two-year foreign residency requirement described in section 214(l)(1)(B) or (C) of the Act?”
VSC’s Filing Tips indicate that this box should be checked only if the beneficiary is a physician who received a Conrad waiver. This is partially accurate. While it is correct that the exemption does not extend to those who received a J-1 waiver based on a no objection letter, hardship, persecution, or many Interested Government Agency (IGA) waivers, INA §214(l)(1)(B) or (C) is not limited to J-1 waivers based on a recommendation from a State 30 program.
INA §214(l)(1)(B) or (C) describes J-1 waivers granted to physicians who, after completing graduate medical education (GME) in the U.S., make a three year, full time commitment to serve in a qualifying medical shortage area.
In addition to the Conrad 30 program, these waivers may have been recommended by the Veterans Administration, the Delta Regional Authority, the Appalachian Regional Commission, and the U.S. Department of Health and Human Services.
Physicians who have made a three year commitment and receive a J-1 waiver based on the recommendation of any one of these agencies are required to hold H-1B status for three years to fulfill the waiver obligation. H-1B petitions on their behalf are exempt from the cap, and Part C, Item 4 of the H-1B Data Collection and Filing Fee Exemption Supplement including with the petition should indicate “yes” to this question.
iCERT System Update on 1/20/2010
Friday, January 15th, 2010As you may have seen, the iCERT System will be unavailable starting on Wednesday, January 20th at approximately 6:00 AM EST and will not be available until Thursday January 21st at 6:00 AM EST. Scheduled system maintenance and upgrades will be performed during this time. We will be adding new features in order to better serve your needs.
Key features in the new release include:
- The ability for users to file ETA Form 9141 electronically to request a Prevailing Wage determination from the National Processing Center. Users will be able to perform similar actions to submit and manage their 9141 applications as they currently are able to do for their LCA Form 9035 applications:
- Start a new prevailing wage application and submit online electronically
- Save a prevailing wage application in progress and return at a later time to finish data entry
- Withdraw a submitted prevailing wage application
- Reuse the information on a current prevailing wage application to create a new application
- Delete un-submitted (initiated) prevailing wage applications
- Request a Redetermination Review for applications that have been given determinations
- The ability for users to further manage their accounts and sub-accounts and grant or withdraw permission to access the Prevailing Wage feature
- Readily available Printable Forms and their Instructions from within the prevailing wage application
- A new Case Summary screen (upon logging into iCERT) that will allow users to easily see the status of their last 10 applications submitted and quickly see the last 10 applications that had a decision enacted
Employers or their authorized representatives who intend to use the iCert System to electronically submit prevailing wage applications will be required to register on the iCert system and create accounts prior to electronically submitting their applications. Employers (or their authorized representatives) who are already registered to use the iCERT System may continue using their existing accounts but will be required to activate the Prevailing Wage feature. This can only be activated on or after January 21, 2010. Please review the Prevailing Wage Quick Start Guide to set up your account properly to submit Form 9141 applications.
At this time, those employers who are using the iCERT System but wish to use a private wage source (i.e. a source other than OES or SCA/DBA) or a collective bargaining agreement (CBA) wage rate must continue to submit supporting documentation (for the wage source they wish to use) in hard copy by U.S. mail or other physical delivery service. The employer may either mail in the application with supporting documents in hard copy or file the application electronically and submit the supporting documents by mail after an electronic case number is issued. The hard copies of documents filed in support of electronically submitted applications must include the electronic case number associated with that prevailing wage application.
Please contact the OFLC help desk at oflc.portal@dol.gov for further information on the outage. For specific questions on your application, application status, or other questions that do not pertain to the outage, please contact the OFLC National Processing Center at lca.chicago@dol.gov for H-1B assistance or the OFLC National Prevailing Wage and Helpdesk Center at flc.pwd@dol.gov for Prevailing Wage assistance.
For more information about the process of filing the Prevailing Wage Determination requests with the NPWHC, employers may wish to refer to the recently posted Prevailing Wage Frequently Asked Questions (December 2009), and the Prevailing Wage Determination Policy Guidance for Nonagricultural Immigration Programs (Revised November 2009).
USCIS Memorandum on H-1B Visa employer-employee relationships
Thursday, January 14th, 2010U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification. The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements: Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).” In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.
Click here for a copy of the memorandum.
Questions & Answers
Q: Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?
A: No. This memorandum does not change any of the requirements for an H-1B petition. The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee. In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:
- establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
- demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
- filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
Q: What factors does USCIS consider when evaluating the employer-employee relationship?
A: As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job. Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary. Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.
Q: What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?
A: You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.
Q: What if I cannot submit the evidence listed in the memorandum?
A: The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment. Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents. You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists. You should explain how the documents you are providing establish the relationship. Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.
Q: What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?
A: If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE. You should explain how the documents you are providing address the deficiency(ies) raised in the RFE. Adjudicators will review and weigh all evidence based on the totality of the circumstances. Please note that you cannot submit similar evidence in place of documents required by regulation.
Q: Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.
Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.
Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?
A: Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition. The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own). Such exceptions would be limited and made on a case-by-case basis.
Q: What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification? Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?
A: No. The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment. All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.
Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location. Do I need to submit an itinerary in support of my petition?
A: Yes. You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location. Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.
Q: What happens if I do not submit evidence of the employer-employee relationship with my initial petition?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE). However, failure to provide this information with the initial submission will delay processing of your petition.
For more information on USCIS and its programs, call 1-800-375-5283.
H-1B FY 2010 Quota – Filled on 12/21/2009. Start now for the April 1, 2010 FY 2011 Filing.
Thursday, January 14th, 2010H-1B FY 2010 Quota – Filled on December 21, 2009:
The H1B cap for FY 2010 was reached on December 21, 2009. The USCIS made the final FY10 cap announcement on December 22, 2009. This announcement states that sufficient cases were filed to meet the cap as of December 21, 2009. Any cap-subject cases filed after December 21, 2009 will be returned to the filer.
An unspecified number of the December 21, 2009 filings will also be rejected (returned to the filer). The USCIS will conduct a random lottery of the cases filed on December 21st, since there are not enough cap numbers for all cases filed as of that date. This marks the end of the FY 2010 H1B cap filings, which began on April 1, 2009.
H-1B Cap petiitons may now be prepared for the FY 2011 first day of filing on April 1, 2010.
H-1B Approvals – 12-2-09
Wednesday, December 2nd, 2009We provide this information so our viewers can see the actual processing times that we are experiencing:
Case Type: H-1B & H-4 Renewal
Job Title: Engineering Analyst
Date Filed: 09/30/2009
Date Approved: 11/25/2009
Date Received: 12/2/2009
Work Location: Bloomington, IL
USCIS Service Center: California
USCIS Case #: WAC-09-256-51457
Case Type: H-1B (Premium Processing)
Job Title: Network Administrator
Date Filed: 11/17/2009
Date Approved: 11/25/2009
Date Received: 12/2/2009
Work Location: New York, NY
USCIS Service Center: Vermont
USCIS Case #: EAC-10-032-50988
Increased verification of compliance on H-1B employers by USCIS
Wednesday, November 4th, 2009Increased verification of compliance on H-1B employers by the USCIS Fraud Detection and National Security (FDNS)
USCIS is giving heightened scrutiny to H1B applications, with a greater role for the Fraud Detection and National Security division (FDNS).
In 2005 Congress imposed a $500 Fraud Prevention and Detection Fee that H1B and L visa applicants must pay when seeking their initial visas.