Immigration Lawyer US

According to the Labor Department:

As explained in an earlier FAQ on this subject, if the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing following the procedure below, must be sent to the National Processing Center to which the application was originally submitted.

In the event employers are unable to withdraw electronically as stated above, employers should send a withdrawal request by e-mail to the appropriate National Processing Center at: PLC.Chicago@dol.gov (for Chicago) or PLC.Atlanta@dol.gov (for Atlanta). To ensure your request is processed expeditiously, please include the following information in the e-mail request:

• Show the words "Withdrawal Request" and the employer’s name in the subject line of the e-mail
• In the body of the e-mail, include the following information:
  • Case Number
  • Employer's Name
  • Employer's EIN
  • The reason for withdrawal
  • Name and title of individual requesting withdrawal

According to the Labor Department:

No, the employer can not use an electronic national professional journal. The employer must use a print journal whether to satisfy the provision permitting the use of a journal as an alternative to one of the Sunday advertisements or to satisfy the provision requiring an advertisement in a journal under optional special recruitment procedures for college and university teachers.

According to the Labor Department:

Yes, the employer may advertise with a wage range as long as the bottom of the range is no less than the prevailing wage rate.

Is an application for a labor certification for Schedule A occupations filed with a Department of Labor National Processing Center?

According to the Labor Department:

No, an application for a labor certification for Schedule A occupations is filed, in duplicate, with the appropriate Department of Homeland Security (DHS) office.

In order to establish a "pattern of recruitment," which date is used as the reference point – the date the original application was received or the date the RIR conversion request is received?

According to the Labor Department:

The point of reference for the pattern of recruitment is based upon the date the RIR conversion request was received. In other words, the earliest acceptable published advertisement or other recruitment activity must have occurred within six months prior to the date the RIR conversion request was received by the BEC. Earlier advertisements or other recruiting activities will not be considered by the BEC in determining whether a pattern of recruitment has been established.

As a result of the State Department updating its July 2007 Visa Bulletin on July 2, 2007, declaring all Employment-based preference categories to be unavailable, the USCIS has now announced that it "is rejecting applications to adjust status (Form I-485) filed by aliens whose priority dates are not current under the revised July Visa Bulletin."  The USCIS Press Release is as follows:

Incredibly, the U.S. Department of State has announed today, July 2, 2007, that it is updating its Visa Bulletin for July 2007.  The July Visa Bulletin was the visa bulletin which all of a sudden declared most of the Employer Based visa categories to be current.  Now, today, the State Depatment has announced that it unexpectedly used "almost 60,000 Employment numbers" in June, and as a result the State Department is changing the July numbers.  Specifically, the State Department has announced that all numbers for the Employment-based preference cases have been used up for this fiscal year (FY-2007), and that new Employment-based preference numbers will only be made available for the next fiscal year (FY-2008), beginning October 1, 2007.

This is a truly incredible turn of events:  one moment the State Department announces that most of the Employment-based preference categories will be current in July, and the next moment they announce that all of the Employment-based preference categories are unavailable in July--even before any new cases were filed in July.  In other words, this was a pure miscalculation on the part of the State Department, and was not based on any deluge of filings on July 2--since the numbers were cut off before anyone even filed in July.

The USCIS has announced that the H-1B cap for regular cases was reached on April 2, 2007, i.e., the first day that the filing was permitted.  This means that petitions for regular cases will go into a random selection lottery.  The USCIS does not yet know whether the Master's cap was reached or not.  The USCIS notice appears below, and as an attached PDF file.

The USCIS has announced that the H-1B cap for regular cases was reached on April 2, 2007, i.e., the first day that the filing was permitted. This means that petitions for regular cases will go into a random selection lottery. The USCIS does not yet know whether the Master's cap was reached or not. The USCIS notice appears below, and as an attached PDF file.

According to the Labor Department:

The State Workforce Agency will make a determination on the acceptability of the employer-provided survey based on the provisions in §§ 656.40(g)(2) and (3).

According to the Labor Department:

If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.

The U.S. Department of State (DOS) announced on 3/21/07 that U.S. Embassies and Consulates will now resume accepting petitions for immediate relative immigrant classification from American citizens who are resident in their consular districts, under certain conditions.  The DOS announcement appears below.

According to the Labor Department:

For purposes of the actual minimum requirements provision, the term "contract employee" is intended to include all persons contracted to work for the employer. The broad use of the term under the actual minimum requirements provision is intended to ensure the provision applies to experience gained working for the employer by the alien, whatever the alien's employment status.

Will the wage offer set forth in a labor certification application be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages?

According to the Labor Department:

No, the wage offered must equal or exceed the prevailing wage. The wage must be at least 100% of the prevailing wage. The 5% deviation, permitted under the former regulation, is no longer acceptable.

Should the employer seek the information required regarding the placement of job orders from the State Workforce Agency (SWA) in the area of intended employment?

According to the Labor Department:

Yes, the employer should seek any information required regarding job orders from the SWA. If an employer is not clear on how to place a job order, the employer should check with the SWA responsible for the area of intended employment. Placement of job orders with a SWA must be in accordance with each SWA's rules and regulations. In other words, SWAs place labor certification job orders the same way they place any other job order.

In the event an employer wanted to refile a reduction-in-recruitment (RIR) conversion application, what date would be considered the original filing date (priority date), i.e., is the filing date of the original application the date the traditional recruitment application was filed with the State Workforce Agency (SWA) or the date the application was accepted as a RIR conversion application?

According to the Labor Department:

The original filing date (priority date) is the date the original application was initially accepted for processing by the SWA under the basic labor certification process; it is not the date the application was accepted as a RIR conversion application.

Should I use the procedure described here if I have already heard from the BEC that my case was closed, or have another question about a case?

According to the Labor Department:

No. This process is only for cases about which the employer or their attorney has not heard from the BEC about the case at all. If you believe your case was closed in error due to non-receipt or non-response to a 45-day letter, you should send your request to the BEC where the closed cased was pending, the Dallas BEC at reopenrequest@dal.dflc.us or the Philadelphia BEC at reopenrequest@phi.dflc.us.

If you have another question about a case, it should go to the general information box at info@dal.dflc.us for the Dallas BEC or at info@phi.dflc.us for the Philadelphia BEC.

According to the Labor Department:

The employer must provide the address of the appropriate Certifying Officer for the area of intended employment. Addresses for the National Processing Centers and Certifying Officers, including a chart of the states and territories within their jurisdiction, can be found under the section, How to File, above.

If the employer includes job duties and requirements in the advertisement, must they be listed on the Application for Permanent Employment Certification, ETA Form 9089, as well?

According to the Labor Department:

Yes, if an employer wishes to include additional information about the job opportunity, such as the minimum education and experience requirements or specific job duties, the employer may do so, provided these requirements also appear on the ETA Form 9089.

According to the Labor Department:

If the employer disagrees with the skill level assigned to its job opportunity, or if the SWA informs the employer its survey is not acceptable, or if there are other legitimate bases for such a review, the employer is afforded one opportunity to provide supplemental information to the SWA. Additionally, the employer may choose to file a new request for a wage determination or request review by the Certifying Officer.