PERM Coming Soon According to DOL Regulatory Agenda
On June 28, 2004, the Department of Labor (DOL) published its Semiannual Regulatory Agenda in the Federal Register. This document presents the Department's semiannual agenda of regulations that were selected for review or development during the coming year. Several items were announced that reveal important immigration law changes in the near future. Below are the provisions in the report relating to immigration matters:
H-1B
The H-1B visa program allows employers to temporarily employ nonimmigrants admitted into the United States under the H-1B visa category in specialty occupations. The employer must file a labor condition application (LCA) with the DOL before USCIS may approve a petition to employ a foreign worker on an H-1B visa. The Department published a proposed rule on January 5, 1999, in response to statutory changes in the H-1B program made by the American Competitiveness and Workforce Improvement Act of 1998.
Changes made by the act place additional obligations on “H-1B-dependent” employers (those whose work forces were comprised of more than 15 percent H-1B workers) and on willful violators. These employers must recruit and hire US workers who are at least as qualified as H-1B workers, and not displace US workers by hiring H-1B workers or placing them at another employer's job site. Additionally, the 1998 amendments imposed additional obligations on all H-1B employers, such as offering similar benefits to H-1B workers as those offered to US workers, and payment to H-1B workers during periods they are not working for an employment-related reason.
On December 20, 2000, the Department published an interim final rule to implement the recent amendments and clarify the existing rules, and requested further public comment on those provisions.
H-2B
Under the redesigned H-2B temporary nonagricultural program employers seeking to import H-2B workers, (except for applications filed for employment on Guam or in logging), would file directly with the Department of Homeland Security (DHS). The employer will be required to conduct recruitment before filing its petition and DHS will administer the petition adjudication process. After adjudication, the Department of Labor (DOL) will audit selected approved petitions. In such audits, DOL will determine whether the employer has complied with those aspects of the approved petition related to the labor market and other related attestations.
Employers will be expected to have documentation supporting their attestations and will be required to provide this documentation to DOL within 30 days from the notice of audit. If, after completion of the audit, DOL determines that the employer has failed to comply with the terms of the attestations contained in the DHS petition or made material misrepresentations in its attestation, after notice to the employer and opportunity for a hearing, DOL will recommend to DHS that the employer be debarred for a period up to three years.
LCA
Currently, the DOL allows employers to file labor condition applications (LCA) electronically, by facsimile transmission (fax), and by mail. The Department has proposed eliminating the provision that allows employers to file LCAs by fax. Employers that could not file LCAs electronically due to physical impairments would be allowed to submit LCAs by mail. The Rulemaking would also inform employers of an impending change in address for the submission of LCA by mail. The Department believes the e-filing process will ensure faster processing of H-2B petitions and limit the number of potentially incomplete applications. In addition it will ease the filing burden on employers. Through e-filing, the Department will be better able to obtain statistics and analyze program data to identify areas that need improvement and any fraud or abuse.
Labor Certification
The Employment and Training Administration (ETA) is in the process of reengineering the permanent labor certification process in order to streamline the process, save resources, improve the effectiveness of the program and better serve DOL customers.
The labor certification process has been described as being complicated, costly and time consuming. ETA, therefore, is taking steps to improve the effectiveness of the requirements and application processing procedures, which would save resources both for the Government and employers, without diminishing protections now afforded U.S. workers by the current requirements.
On May 6, 2002, the Department published a notice of proposed rulemaking and requested further public comment on those provisions.
H-1B1
The DOL intends to amend the regulations for the temporary employment of foreign professionals in order to implement requirements for a new visa category: the H-1B1 visa. Congress created the new visa category as part of its approval of the Chile-United States Free Trade Agreement and the Singapore-United States Free Trade Agreement. Under the legislation and the Chile and Singapore agreements, the H-1B1 program would be similar to the existing H-1B program for temporary employment in specialty occupations. Employers in the United States seeking to temporarily employ foreign professionals in specialty occupations through H-1B1 visas must file a labor condition application with the Department of Labor making the same attestations regarding payment of prevailing wages, working conditions, absence of strikes or lockouts, and notice to other employees that employers currently make when seeking entry of a foreign worker under the H-1B program.
H-1C
The Nursing Relief for Disadvantaged Areas Act of 1999 amended the Immigration and Nationality Act (INA) to create a new temporary visa program for nonimmigrant aliens to work as registered nurses for up to three years in facilities serving health professional shortage areas, subject to certain conditions.
On June 28, 2004, the Department of Labor (DOL) published its Semiannual Regulatory Agenda in the Federal Register. This document presents the Department's semiannual agenda of regulations that were selected for review or development during the coming year. Several items were announced that reveal important immigration law changes in the near future. Below are the provisions in the report relating to immigration matters:
H-1B
The H-1B visa program allows employers to temporarily employ nonimmigrants admitted into the United States under the H-1B visa category in specialty occupations. The employer must file a labor condition application (LCA) with the DOL before USCIS may approve a petition to employ a foreign worker on an H-1B visa. The Department published a proposed rule on January 5, 1999, in response to statutory changes in the H-1B program made by the American Competitiveness and Workforce Improvement Act of 1998.
Changes made by the act place additional obligations on “H-1B-dependent” employers (those whose work forces were comprised of more than 15 percent H-1B workers) and on willful violators. These employers must recruit and hire US workers who are at least as qualified as H-1B workers, and not displace US workers by hiring H-1B workers or placing them at another employer's job site. Additionally, the 1998 amendments imposed additional obligations on all H-1B employers, such as offering similar benefits to H-1B workers as those offered to US workers, and payment to H-1B workers during periods they are not working for an employment-related reason.
On December 20, 2000, the Department published an interim final rule to implement the recent amendments and clarify the existing rules, and requested further public comment on those provisions.
H-2B
Under the redesigned H-2B temporary nonagricultural program employers seeking to import H-2B workers, (except for applications filed for employment on Guam or in logging), would file directly with the Department of Homeland Security (DHS). The employer will be required to conduct recruitment before filing its petition and DHS will administer the petition adjudication process. After adjudication, the Department of Labor (DOL) will audit selected approved petitions. In such audits, DOL will determine whether the employer has complied with those aspects of the approved petition related to the labor market and other related attestations.
Employers will be expected to have documentation supporting their attestations and will be required to provide this documentation to DOL within 30 days from the notice of audit. If, after completion of the audit, DOL determines that the employer has failed to comply with the terms of the attestations contained in the DHS petition or made material misrepresentations in its attestation, after notice to the employer and opportunity for a hearing, DOL will recommend to DHS that the employer be debarred for a period up to three years.
LCA
Currently, the DOL allows employers to file labor condition applications (LCA) electronically, by facsimile transmission (fax), and by mail. The Department has proposed eliminating the provision that allows employers to file LCAs by fax. Employers that could not file LCAs electronically due to physical impairments would be allowed to submit LCAs by mail. The Rulemaking would also inform employers of an impending change in address for the submission of LCA by mail. The Department believes the e-filing process will ensure faster processing of H-2B petitions and limit the number of potentially incomplete applications. In addition it will ease the filing burden on employers. Through e-filing, the Department will be better able to obtain statistics and analyze program data to identify areas that need improvement and any fraud or abuse.
Labor Certification
The Employment and Training Administration (ETA) is in the process of reengineering the permanent labor certification process in order to streamline the process, save resources, improve the effectiveness of the program and better serve DOL customers.
The labor certification process has been described as being complicated, costly and time consuming. ETA, therefore, is taking steps to improve the effectiveness of the requirements and application processing procedures, which would save resources both for the Government and employers, without diminishing protections now afforded U.S. workers by the current requirements.
On May 6, 2002, the Department published a notice of proposed rulemaking and requested further public comment on those provisions.
H-1B1
The DOL intends to amend the regulations for the temporary employment of foreign professionals in order to implement requirements for a new visa category: the H-1B1 visa. Congress created the new visa category as part of its approval of the Chile-United States Free Trade Agreement and the Singapore-United States Free Trade Agreement. Under the legislation and the Chile and Singapore agreements, the H-1B1 program would be similar to the existing H-1B program for temporary employment in specialty occupations. Employers in the United States seeking to temporarily employ foreign professionals in specialty occupations through H-1B1 visas must file a labor condition application with the Department of Labor making the same attestations regarding payment of prevailing wages, working conditions, absence of strikes or lockouts, and notice to other employees that employers currently make when seeking entry of a foreign worker under the H-1B program.
H-1C
The Nursing Relief for Disadvantaged Areas Act of 1999 amended the Immigration and Nationality Act (INA) to create a new temporary visa program for nonimmigrant aliens to work as registered nurses for up to three years in facilities serving health professional shortage areas, subject to certain conditions.
