DOL PROPOSES FAR-REACHING LCA CHANGES

Long gone are the days when the Labor Condition Application (LCA) certification was done immediately. Three years ago the U.S. Department of Labor (DOL) moved into the iCert portal for LCA filings and each application must be manually reviewed prior to certification by a DOL officer. This change increased the official LCA processing time from a few seconds to 7 business days.
Now DOL is proposing yet additional changes. In its desire to improve the integrity review and ensure accuracy and completeness of the information, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the non-immigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit U.S. workers; and requiring the employer to list the address where the employee’s public access file is kept.
While the change in regulations is a process that can take several months, the changes must be approved by the federal Office of Management and Budget (OMB) before they can be implemented. Some of the changes are even more significant, including a proposal to identify the intended beneficiaries on the LCA. Currently the LCA does not require any information identifying the intended beneficiaries of the H-1B petition. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed on the LCA.
In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.
While the DOL has some valid points, its rules may violate privacy issues. Since the LCA are available for public inspection, the beneficiaries have rights to privacy and identity information. In addition, employers now may use a certified LCA to file an H-1B petition for a new employee if the existing LCA was not used for someone else or a part of a withdrawn H-1B. This will be more cumbersome for employers who may want to use existing LCAs. Because of the lag time from filing to certifying the LCAs, employers routinely file LCAs in advance of transferring a particular employee over in order to save precious time. If this change is accepted this will not be possible any longer.
As to the requirement to list the PERM application numbers, what happens in a case where the employer is not aware of a prior PERM filing for the same employee by another employer? The new DOL rule proposes to limit the number of workers to 10 per LCA versus the current practice where a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions. This again will create burdens on larger employers.
The DOL's proposed changes include significant additional detail on the worksite. Currently the LCA form requires to identify the place of intended employment (address and county). However, under the new rules the employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.
In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems especially on employees who travel between different worksites or when the final worksite is not known in advance of filing. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA because the LCA wage is valid for the entire area of intended employment (usually the metropolitan area). 
DOL is already targeting and scrutinizing PERM cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. DOL adds these requirements to verify the bona fides of the offer of employment. But how does that help? 
So, while USCIS on one hand helps employers' flexibility (for example on March 12, 2012, they issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition), the DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for U.S. companies to be able to compete in the global marketplace.

FOREIGN INVENTORS DOMINATE PATENTS AWARDED TO TOP RESEARCH UNIVERSITIES

From the business journal in Washington DC, more proof to what we have been saying all along that the H-1B visa cap needs to be thrown out the windows and additional options for foreign-born entrepreneurs:

More than 76 percent of the patents awarded to the nation’s top 10 research universities last year had a foreign-born scientist listed as an inventor. That’s according to the Partnership for a New American Economy, which analyzed 1,500 patents awarded in 2011 to the top 10 patent-producing universities in the U.S. The organization, which is composed of mayors and business leaders, contends this finding demonstrates the need to reform our immigration policies to allow more of these foreign-born inventors to remain in the United States. Many of these inventors may end up leaving the country under current policies. The study found that 54 percent of the patents studied included foreign-born inventors who were students, post-doctoral researchers or staff researchers who were not professors. These foreign researchers are the “most likely to face major hurdles obtaining the visas needed to settle permanently in the United States,” according to the partnership. University research is important because it helps the U.S. stay ahead in the fields of science, technology, engineering and mathematics (STEM). Universities receive one in six of all patents for molecular biology and microbiology, for example. Academic research institutions own more than one-third of patents in genetics. The partnership contends Congress should help the U.S. keep its research edge by passing legislation to: • Grant permanent residency -- green cards -- to foreign students who earn graduate degrees in STEM fields; • Create a Startup Visa for foreign-born entrepreneurs who want to start companies in the U.S.; and • Remove or at least raise the current cap of 65,000 H-1B visas, which are awarded to highly skilled foreigners who work in the U.S. These recommendations were seconded in a letter sent to the White House and Congress today by more than 80 university presidents. “If U.S. political leaders don’t reform the country’s broken immigration system soon, they risk jeopardizing one of the country’s biggest assets -- our ability to leverage our pre-eminent universities to attract talented foreigners and make them part of the great American success story,” the partnership’s report concludes.

The article is available at: http://www.bizjournals.com/bizjournals/washingtonbureau/2012/06/26/foreign-inventors-dominate-patents.html?ana=e_abd&page=all

The report is available at: http://www.renewoureconomy.org/

DOL INCREASES DENIAL/AUDIT RATES FOR PERMS

Disturbing statistics from the U.S. Department of Labor. The DOL has just released its PERM statistics for government Fiscal Year 2012. Year to date, (Oct. 1, 2011 – May 30, 2012), they have received 43,100 PERM applications and certified only 27,600 out of the overall number. 5,600 applications were denied and 2,100 were withdrawn. The others have been audited. So, basic math will have the approval rate at about 64% which means the denial/audit rates are increasing to 37% even while the majority of the PERMs are filed in the computer/math fields and 90% require a bachelor or a master's degree.

H-1B CAP REACHED FOR FY2013

The government's fiscal year FY 2013 did not start yet but the H-1B visa Cap was reached about 3.5 months before it started. USCIS just today updated its website with the following language: On June 11, 2012, USCIS received a sufficient number of petitions to reach the statutory cap for FY 2013. On June 7, 2012, USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012. USCIS continues to accept petitions exempted from the cap and DOD cooperative research worker H-1B petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2013.
New H-1B filings that are not cap-exempt will be accepted for FY2014 starting on October 1, 2014 (and presumably could be filed on April 1, 2014). This is a very long time away. Congress needs to get its act together and increase the quota on a permanent basis.

USCIS MAY BE DRASTICALLY SHORTCHANGING EMPLOYERS TENS OF THOUSANDS OF H-1B APPROVALS

From Greg Siskind, our guest blogger: My friend David Rubman has been quietly pursuing data for months to confirm what he has long suspected - that USCIS is actually issuing far fewer than 85,000 H-1B approvals each year (65,000 for the regular cap and 20,000 for the masters cap). How is this possible? Because USCIS calculates how many H-1B applications it will accept based on estimates of the number of cases it will deny. And they appear to be way off in their estimates. H-1B denial rates have soared over the last few years, but USCIS has not seen fit to take more H-1B applications to account for the shift. And they're also supposed to add withdrawn or revoked H-1Bs back in to the mix. USCIS ought to be reopening the application process when they err in their calculations. This year, the cap is going to be hit 15 months before the end of the fiscal year (September 30, 2013). They will have plenty of time to count and reopen the application process. But under the existing system, when they announce the cap is hit in the next few days, the process will be over until USCIS starts taking applications for the next fiscal year. The White House can't bypass Congress to increase H-1B numbers. But they can make sure that the entire quota is actually exhausted. According to David's calculations, as many as 20,000 H-1Bs per year have been wasted because of USCIS' secretive process for counting H-1B numbers. USCIS likes to throw around the word "fraud" pretty loosely when it comes to how employers use the H-1B program, but wouldn't it be ironic if it turns out that the agency has been misleading Congress and the public regarding how many H-1B approvals it is issuing? It's about time USCIS opens up regarding how it is counting numbers and why they are not reopening the cap when it is found that additional numbers are available.

AILA WARNS TO FILE H-1B PETITIONS BY MONDAY

The American Immigration Lawyers Association just sent an alert as follows: Assuming that the rate of H-1B filings has remained at least constant at 1,800 per day, another 7,200 cap-subject non-master's H-1B petitions will have been filed by the close of business today (June 7, 2012). Add that to the announced 55,600 filed as of June 1, 2012, that means that nearly 63,000 cap-subject H-1B petitions will have been filed by tonight. USCIS sets aside some (approximately 1,500 for Chile/Singapore), and accepts a number in excess of the total cap allocation of 65,000, to take into account denials and withdrawals. Some data suggests that the total number of cap-subject non-master's H-1B petitions taken in is in the neighborhood of 70,000. All of this suggests that for planning purposes, submission of H-1B petitions for delivery to service centers by Monday, June 11, 2012, (which means getting them in the hands of couriers by Saturday for Monday delivery), may be prudent.

USCIS UPDATES H-1B VISA COUNT ON 6/1/2012: AT 55,600

Less than 10,000 H-1B visas are left for FY2013. USCIS just issued another H-1B cap update. As of June 1, 2012, they have accepted approximately 55,600 H-1B petitions subject to the regular H-1B visa cap plus an additional number of 18,700 of petitions of the U.S. advanced degree quota. The limit is being reached quickly, with over 8,000 visas used in a week so there will probably be another week to submit the visas and then they will be gone until October 1, 2013. We are rushing to get everything filed on time for everyone.