Members of the American Immigration Lawyers Association have met with the National Headquarters staff of the Department of Labor on March 19, 1998.
– Labor Condition Applications
AILA reports that considerable progress has been made at getting H-1B Labor Condition Application processing times down to the legally required seven day limit. The American Immigration Law Foundation is also preparing to sue the Department of Labor to enforce the seven day limit. Even so, the Department of Labor reports that it has not provided any overtime funding to meet the time constraints. And this is affecting processing of the permanent residency labor certification cases since Department of Labor regional offices are switching personnel over to handle the H-1B matters.
The DOL is hoping automation can help solve the problem and is again testing a new system to automate the process at its Philadelphia regional office. Twelve members of AILA will be testing software which allow for electronic filing of the Labor Condition Application form. After testing in this region, testing will next take place in the Kansas City regional office and then the process will go nationwide.
– Prevailing wages
DOL explained to AILA the new centralized wage system. The new system is based on 800 job classification groups rather than the 14,000 job classifications in the DOL’s Dictionary of Occupational Titles. Within each of the 800 groups, two classifications will be used – entry-level and experienced. DOL then went into considerable detail explaining the methodology behind the determination of specific wages.
DOL and AILA also discussed the likely result of the new system – increasing numbers of challenges to the wage determinations. Employers are permitted to substitute their own wage surveys for use for that particular employer only. AILA complained to DOL that requiring that the wage surveys be specific to a particular geographic area places an undue burden on employers since in many industries only national or regional wage surveys are readily available.
– Permanent residency labor certification filings
AILA asked the DOL about the impact on the surge in last minute filings in January 1998 due to the sunsetting of Section 245i of the Immigration and Nationality Act. DOL estimates that between October 1, 1997 and January 14, 1998, DOL received 40,000 to 50,000 more applciations than normal. DOL’s budget did not increase to cover this, but it has requested a reprogramming of $5 million in its existing budget to cover the incrase. No decision has yet been made by Congress on this issue.
– Reduction in Recruitment
AILA reported that the Denver, Dallas and Chicago regions were not processing RIR cases (these are fast-tracked cases that are based on prior recruiting by an employer rather than doing a new advertisement). New York has had an impasse in processing all cases, both traditional and RIR. DOL acknowledged the problems and noted that it has submitted a plan to expedite processing without affecting eligibility. DOL also mentioned that New York will get more funding as well as the San Francisco region. DOL would not make commitments on implementing further RIR at all regions.
– Matter of Kellogg
AILA noted that the DOL’s Employment and Training Administration has been dealt a blow that could be as severe as the 30% reduction in its budget. The Board of Alien Labor Certification Appeals has issued a dection in Matter of Kellogg which will make it impossible to certify any case where an alternative requirement is used and the beneficiary fails to meet the more stringent alternative. Whenever the primary and alternative requirements are unequal, the employer is deemed to be failing to use the actual minimum requirements. The case also said that when the alien only meets the alternative requirements, the job requirements are tailored in violation of the rules unless the employer indicates that applicants with any suitable combination of education, training or experience are acceptable. ETA had only intended to challenge these cases when it felt that the use of alternative requirements were disingenuous efforts to require two year experience to overcome the unskilled worker category. DOL has indicated that it is interested in limiting the Kellogg decision to its particular facts, but it has not yet decided how to do this. ETA could face a tremendous problem if it has to issue Notices of Findings in each of these cases. AILA and DOL will try and work together to fashion a resolution to this problem.
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