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Delaware SESA Tracker
- Thread starter gc0902
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NOF Issue
Hi everyone,
My cas ha been issued NOF by Philly DOL.So what are the chances of DOL approving the NOF issued cases?
My details:
My employer has a small office in DE(one room) and relatively big office in NJ.
He is running payroll for the employees whom he filed GC from DE office, including mine.
He is paying taxes ever since he opened the branch company in DE.
I've been receiving my paychecks from DE office for the past one year.
So keeping in mind the above, Could anyone please advise how difficult is to get through the NOF issue?
Thanks
indgc
Hi everyone,
My cas ha been issued NOF by Philly DOL.So what are the chances of DOL approving the NOF issued cases?
My details:
My employer has a small office in DE(one room) and relatively big office in NJ.
He is running payroll for the employees whom he filed GC from DE office, including mine.
He is paying taxes ever since he opened the branch company in DE.
I've been receiving my paychecks from DE office for the past one year.
So keeping in mind the above, Could anyone please advise how difficult is to get through the NOF issue?
Thanks
indgc
Hi indgc123,
We did not see any approvals of DE applications at Philly DOL with DOL received date June 2003 insted we see approvals of MD SESA and Philly SESA applications with Oct and Nov receiving date at Philly DOL.
This states that all applications from DE SESA are at scrutiny.
As your company has all the info that Philly DOL is asking, let us hope that you don't have any problem.
We did not see any approvals of DE applications at Philly DOL with DOL received date June 2003 insted we see approvals of MD SESA and Philly SESA applications with Oct and Nov receiving date at Philly DOL.
This states that all applications from DE SESA are at scrutiny.
As your company has all the info that Philly DOL is asking, let us hope that you don't have any problem.
Latest news
3. Philadelphia Region DOL Warns against Forum Shopping
A quick review of the U.S. Department of Labor (DOL) Case-Processing Chart reflects that the time it takes to process a labor certification case, whether RIR or non-RIR, varies widely according to the location of filing. Although DOL processing is within the purview of federal law that should be uniform and consistent throughout the United States, the reality is different. The processing times for certain states is measured in years, while for other states it is measured in months. This disparity in processing times has provided an incentive to some companies to try establishing a proper basis for filing in the faster jurisdictions. The DOL has started to closely scrutinize these cases, at least in the Philadelphia and Boston Regions.
Incentive for Employers to Seek Faster Jurisdictions
Some employers, faced with a decision as to the best location of a new office or for expansion of an existing office, give consideration to the favorable labor certification processing times in certain states. The employers may feel they have little choice if they are to attract and retain skilled and experienced workers. The lengthy DOL processing delays result in expenses to an employer, both in considerable financial resources and in the potential loss of experienced employees to competitors willing and able to file in those states where labor certifications are administered much more quickly.
DOL Had Issued No Clear Definition for Headquarters
This strategy, now being referred to disparagingly by the DOL as "forum shopping," is based upon a long-standing DOL advisory letter and practice of allowing labor certifications of roving employees to be filed at a company's headquarters or main branch office. The opinion did not provide a definition of headquarters. Accordingly, this provided some flexibility with respect to the location of filings. This approach generally has been accepted and successful over the years and has not been challenged by the DOL. However, the DOL Philadelphia Region recently advised that they are closely investigating some of the offices in Delaware and other states with faster processing that are being used as a basis for labor certification filings. They have also discussed this matter with the Boston Region because New Hampshire has many cases similar to those filed at Delaware due to its faster processing timeframes.
DOL Requires Headquarters as Jurisdiction for Filing LCs
Some employers working primarily over the Internet and with technology claim that they do not have any fixed work location and legally may decide to make any location their headquarters. Such employers allege that the DOL cannot force them to have their headquarters in another jurisdiction. The problem seems to stem from the manner in which some companies set up their new offices. The DOL officials have paid visits to offices in Delaware and other states, apparently to find virtually non-existent operations. Offices without staff, equipment, telephones, and basic business operations apparently do not meet the DOL's new criteria. The DOL is reviewing the work location noted on a company's H1B Labor Condition Applications for a majority of its employees for determining the location of a company's headquarters.
The DOL states that it believes a substantial number of employers are filing labor certifications in the wrong jurisdictions (forum shopping) and that it considers this to be a serious problem. The DOL is concerned that some of the companies are not legitimately transacting any business at these locations. Employers believing that cases they filed are at risk should contact their immigration attorneys. Many cases are likely to be questioned, and Notice of Findings (NOFs) issued when the DOL suspects forum shopping. The DOL has already started issuing such NOFs. Employers should be prepared for this possibility if they have cases of this nature pending. They should be ready to justify the place of the filing and should document their ongoing business operations in the selected state.
The headquarters rule is a matter of policy and practice. At various times, policies, practices, and legal interpretations change. This is often due to personnel changes, as is the case with the Philadelphia DOL.
Future Strategy in Such Cases and Potential Lawsuits
This change of policy could result in discussions and negotiations with the DOL and possible lawsuits or threat of lawsuits. Some employers are outraged with the abrupt change of DOL policy without any advance notice to employers or their attorneys. They have acted in good faith reliance in accordance with previously-approved cases, believing that they were legally allowed to file in jurisdictions with faster processing times under a broad definition of the term "headquarters." Sometimes years have been invested in the process. Employers will likely argue that they have relied, to their detriment, on long-standing DOL policy, and incurred substantial expense for newspaper advertisements and legal fees based on DOL's past conduct and policy over the last eight to ten years. One of the motivating factors for the DOL to start investigating these cases appears to be simply to reduce their own backlogs. The DOL Headquarters may have issued a mandate that all backlogs need to be cleared in the near future or, at the latest, soon after PERM regulations are released.
© The Law Office of Sheela Murthy, P.C.
(Source - http://murthy.com/bulletin.html#3)
3. Philadelphia Region DOL Warns against Forum Shopping
A quick review of the U.S. Department of Labor (DOL) Case-Processing Chart reflects that the time it takes to process a labor certification case, whether RIR or non-RIR, varies widely according to the location of filing. Although DOL processing is within the purview of federal law that should be uniform and consistent throughout the United States, the reality is different. The processing times for certain states is measured in years, while for other states it is measured in months. This disparity in processing times has provided an incentive to some companies to try establishing a proper basis for filing in the faster jurisdictions. The DOL has started to closely scrutinize these cases, at least in the Philadelphia and Boston Regions.
Incentive for Employers to Seek Faster Jurisdictions
Some employers, faced with a decision as to the best location of a new office or for expansion of an existing office, give consideration to the favorable labor certification processing times in certain states. The employers may feel they have little choice if they are to attract and retain skilled and experienced workers. The lengthy DOL processing delays result in expenses to an employer, both in considerable financial resources and in the potential loss of experienced employees to competitors willing and able to file in those states where labor certifications are administered much more quickly.
DOL Had Issued No Clear Definition for Headquarters
This strategy, now being referred to disparagingly by the DOL as "forum shopping," is based upon a long-standing DOL advisory letter and practice of allowing labor certifications of roving employees to be filed at a company's headquarters or main branch office. The opinion did not provide a definition of headquarters. Accordingly, this provided some flexibility with respect to the location of filings. This approach generally has been accepted and successful over the years and has not been challenged by the DOL. However, the DOL Philadelphia Region recently advised that they are closely investigating some of the offices in Delaware and other states with faster processing that are being used as a basis for labor certification filings. They have also discussed this matter with the Boston Region because New Hampshire has many cases similar to those filed at Delaware due to its faster processing timeframes.
DOL Requires Headquarters as Jurisdiction for Filing LCs
Some employers working primarily over the Internet and with technology claim that they do not have any fixed work location and legally may decide to make any location their headquarters. Such employers allege that the DOL cannot force them to have their headquarters in another jurisdiction. The problem seems to stem from the manner in which some companies set up their new offices. The DOL officials have paid visits to offices in Delaware and other states, apparently to find virtually non-existent operations. Offices without staff, equipment, telephones, and basic business operations apparently do not meet the DOL's new criteria. The DOL is reviewing the work location noted on a company's H1B Labor Condition Applications for a majority of its employees for determining the location of a company's headquarters.
The DOL states that it believes a substantial number of employers are filing labor certifications in the wrong jurisdictions (forum shopping) and that it considers this to be a serious problem. The DOL is concerned that some of the companies are not legitimately transacting any business at these locations. Employers believing that cases they filed are at risk should contact their immigration attorneys. Many cases are likely to be questioned, and Notice of Findings (NOFs) issued when the DOL suspects forum shopping. The DOL has already started issuing such NOFs. Employers should be prepared for this possibility if they have cases of this nature pending. They should be ready to justify the place of the filing and should document their ongoing business operations in the selected state.
The headquarters rule is a matter of policy and practice. At various times, policies, practices, and legal interpretations change. This is often due to personnel changes, as is the case with the Philadelphia DOL.
Future Strategy in Such Cases and Potential Lawsuits
This change of policy could result in discussions and negotiations with the DOL and possible lawsuits or threat of lawsuits. Some employers are outraged with the abrupt change of DOL policy without any advance notice to employers or their attorneys. They have acted in good faith reliance in accordance with previously-approved cases, believing that they were legally allowed to file in jurisdictions with faster processing times under a broad definition of the term "headquarters." Sometimes years have been invested in the process. Employers will likely argue that they have relied, to their detriment, on long-standing DOL policy, and incurred substantial expense for newspaper advertisements and legal fees based on DOL's past conduct and policy over the last eight to ten years. One of the motivating factors for the DOL to start investigating these cases appears to be simply to reduce their own backlogs. The DOL Headquarters may have issued a mandate that all backlogs need to be cleared in the near future or, at the latest, soon after PERM regulations are released.
© The Law Office of Sheela Murthy, P.C.
(Source - http://murthy.com/bulletin.html#3)
In Philly DOL thread "insh1bneb" posted this info.
Please post any news that you know from friends, please post here.
==================================
just wanna share some info
Hi Everyone,
I just came to know that my friends friend got his sesa cleared on feb 12 or 13 th of this month which he filed from Delaware (Headquarters NJ) in feb 2003 . I don't know what is going on but i think sesa is moving after a long time out.
If u know any info pls share.
===================================
(Source http://immigrationportal.com/showthread.php?s=&postid=694463#post694463)
Please post any news that you know from friends, please post here.
==================================
just wanna share some info
Hi Everyone,
I just came to know that my friends friend got his sesa cleared on feb 12 or 13 th of this month which he filed from Delaware (Headquarters NJ) in feb 2003 . I don't know what is going on but i think sesa is moving after a long time out.
If u know any info pls share.
===================================
(Source http://immigrationportal.com/showthread.php?s=&postid=694463#post694463)
DOL site updated.
http://workforcesecurity.doleta.gov/foreign/times.asp updated. Delaware is running March. Philly DOL on June for RIR.
http://workforcesecurity.doleta.gov/foreign/times.asp updated. Delaware is running March. Philly DOL on June for RIR.
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