Business Immigration Insights

Employers nationwide are implementing work reductions, closures and furloughs in order to reduce costs during the COVID-19 economic slowdown in the United States.  When employees are put on reduced hours or furloughed, employers face changing legal obligations in multiple areas of labor and employment law.  Companies that employ nonimmigrant workers should not overlook the additional legal obligations they have toward these employees, especially those who are on visas that have prevailing wage requirements.

Employers, already dealing with a chaos of urgent-action items caused by COVID-19, must not overlook the stringent posting requirements under US Department of Labor (DOL) regulations for employees in H‑1B, H-1B1, and E-3 status, and for all employees, regardless of status, who are being sponsored for green cards through labor certification (“PERM”).

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.

The U.S. Department of Labor’s Board of Alien Labor Certification Appeals (“BALCA”) determines employers’ appeals of prevailing wage determinations and labor certification (“PERM”) denials during sponsorship of foreign nationals for employment-based green cards.  In a recently decided case, BALCA upheld a PERM denial because the employer failed to interview a potentially qualified U.S. worker during the mandatory labor market test for the sponsored position.  BALCA said that employers have a duty to investigate further when the resume raises a "reasonable ...

On April 15, 2015, the day its previous order was due to expire, the Federal District Court for the Northern District of Florida extended its permission for the Department of Labor to process H-2B wage and labor certification applications for another month, through May 15, 2015.

On March 20, 2015, the U.S. Department of Labor issued new FAQs providing more details on the latest developments in the ongoing federal court case challenging DOL's authority to issue and implement regulations for the H-2B temporary worker program.

On March 17, 2015, the U.S. Citizenship & Immigration Services announced it will resume H-2B processing, but will continue to suspend premium (expedited) processing until further notice.

On March 16, 2015, the U.S. Departments of Labor and Homeland Security jointly announced that they intend to release a joint Interim Final Rule by April 30, 2015, to resolve the agencies’ suspension of H-2B processing following a Florida federal court decision in Pérez v. Pérez.  See our blog entry of March 9, 2015, for details on that decision.  DOL also announced it will seek interim relief from the decision so that it may continue H-2B processing in the interval before the Interim Final Rule is promulgated.

In the joint statement, DOL and DHS acknowledged that “hardship” has ...

As of March 5, 2015, U.S. Citizenship and Immigration Services (USCIS) has temporarily shut down its processing of H-2B petitions and the U.S. Department of Labor (DOL) has stopped accepting or processing applications for H-2B prevailing wages and temporary labor certifications due to a Florida federal court’s decision in Pérez v. Pérez.

As Congress failed to reach an agreement to avert the unthinkable, the US Government shut down at midnight.  This will affect some immigration-related government agencies:

• US Citizenship and Immigration Services (USCIS),which processes immigrant and nonimmigrant visa petitions, will continue operating.  Petitions already on file will continue to be processed, and new petitions will continue to be accepted.  eVerify will not be operating during the shutdown.
• US Customs and Border Protection, which conducts inspections of those arriving by land, air, and sea, and enforces ...

On July 1, DOL announced that its Office of Foreign Labor Certification (OFLC) is making publicly available redacted copies of all certified H-1B, H-1B1 and E-3 Labor Condition Applications (LCAs) and permanent labor certifications (PERMs) dating back to April 15, 2009, through the iCert “Labor Certification Registry” (LCR).  These certified documents can be searched by case number, case type, state, job location, employer name, posting range, or industry code.  The “LCR Document Availability Schedule” gives specific availability timeframes for each type of ...

In late July 2011, the US Department of Labor's National Prevailing Wage Center temporarily suspended processing of Prevailing Wage Requests (PWRs) in connection with labor certification applications. The suspension also affects redeterminations and Center Director Reviews. DOL has not announced how long the suspension will last or how long it will take to clear the PWR backlog once the suspension is lifted.