LAW OFFICE OF AJAY K. ARORA
Empire State Building
350 Fifth Avenue, Suite 1415A
New York, NY 10118
Phone: (212)268-3580
Fax: (212)268-3582
Email: info@h1b1.com
| H-1B Visa and Immigration | ||
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LAW OFFICE OF AJAY K. ARORA |
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2003 | 2002 | 2001 | 2000 November 2001 | August 2001 | January 2001
August, 2001
DOL Issues Long Awaited RIR Conversion Regulations
On August 6, 2001, the Department of Labor (DOL) published a final rule allowing employers with pending "traditional" labor certification applications to convert them into "fast-track" reduction in recruitment (RIR) applications while preserving the earlier filing date. The rule would permit applications filed on or before August 3, 2001, to now be processed as an RIR request.
The ability to convert regular LC cases to RIR is part of an overall effort by DOL to reduce backlogs at the state labor offices known as State Employment Security Agencies (SESAs). An employer may request to process an application as an RIR by submitting evidence of good faith recruitment conducted within the six months immediately preceding the date of the request. The final rule provides that an employer may request an RIR conversion up until the point that the State Employment Security Agency (SESA) has placed a job order. Therefore, a request for conversion can be made at any point before the placement of a job order, and can be done even if the SESA has notified the employer about needed changes prior to the placement of the job order.
A request for conversion must be made at the SESA and not directly with the regional DOL office. The DOL also recognizes that since traditional applications may be pending for many years, minor changes may be made to the job description and wage when making the request for conversion. However, if the duties and requirements of the job offer are changed to such an extent that it becomes a new job opportunity, the application would need to be refiled with the SESA as a new application with a new priority date. The DOL has stated no position will be discriminated again in conversion to RIR.
The conversion process from regular LC to RIR can also be used for cases that were originally filed as RIR but were denied and sent back to the SESA for new advertisements for processing as regular LC cases. This means that an employer can re-advertise the position and request that the case be converted back to RIR as indicated above.
EB-3 Category Current
On June 12, 2001, the U.S. Department of State released the Visa Bulletin, which showed that priority dates in all the employment-based (EB) categories will become current effective July 1, 2001. This news affects many persons from India or China waiting to file their adjustment of status applications (or go through consular processing) after their RIR or regular-track Labor Certification approvals and Petition for Immigrant Worker (I-140) approvals. Click here for the visa chart. Click here for a more detailed explanation of priority dates.
INS Releases H-1B Count
INS has advised AILA that, as of May 23, 2001, it had approved 117,000 H-1Bs toward the cap, and had another 40,000 cap-subject H-1Bs pending. The overall H-1B quota for this fiscal year, which ends September 30, 2001, is 195,000. We will keep you posted. Please remember that someone extending or transferring their H-1B status is not subject to the cap. H-1Bs hired by institutions of higher learning, affiliated research organizations, nonprofit research organizations and governmental research organizations are also exempt from the cap.
Premium Processing Program to Start June 1
INS has confirmed that it will begin its premium processing program on June 1, 2001. The program will initially be available only for nonimmigrant worker petitions (Form I-129) for the following categories: E1 (treaty trader), E2 (treaty investor), H2A (agricultural worker), H2B (temporary worker), H3 (trainee), L1 (intra-company transferee), O1/O2 (extraordinary ability or achievement), P1/P2/P3 (athletes and performers), and Q1 (cultural exchange). Starting July 30, 2001, INS plans to add the following case types to the program: H1B (temporary professional), R1 (religious worker), and TN (NAFTA professional). INS indicated that it is not including them in the initial program because it expects that the volume of expedite requests for H-1Bs would be high, and it wants the opportunity to operate the program for a while before absorbing that volume.
The earliest the INS could receive any duly completed requests under this program would be Monday, June 4, 2001. If requesting Premium Processing of a new case, then Form I-907 needs to be enclosed with the regular petition package, and sent to the special Premium Processing Address for the appropriate INS Service Center. Of course, the Premium Processing Fee of $1000, in addition to the standard INS filing fees, also needs to be included. If family members of the beneficiary are also applying together for an extension or change of status based on the petition, then the dependents' cases would also get the benefit of premium processing, without themselves being charged a premium fee.
It is also possible to send an I-907 with respect to a case that has already been filed. The procedure in that situation is to send the I-907 and premium fee with a copy of the receipt notice, if available. In this situation as well, the special address must be used. The 15-day processing period would date from the time the Form I-907 is received, not from the original receipt date of the petition.
The designated addresses are indicated in the instructions to the Form I-907. The instructions also indicate a special eMail address for checking the status of premium cases only, and the receipt notices for the I-907 will provide a special telephone number as well.
Vermont Service Center Issues Receipt Notices Veeeerrrrry Slowly
Issuance of receipt notices for cases filed with the Vermont Service Center is taking considerably over one month. VSC confirms that it has close to 200,000 pieces of correspondence (new filings, responses to RFEs, letters sending in LCAs, etc.) sitting in the mailroom waiting to be sorted, put through data entry and routed to examiners. This "frontlog" has reached crisis proportions due to a variety of factors, including 245(i) and the upcoming June 15 change in INS' mailroom contractor.
To prepare for the new contractor and deal with the frontlog, VSC is dedicating approximately 70 regular INS employees, plus almost all available overtime of its staff, to opening and sorting the mail so that it is ready for data entry (data entry is the step where the record in the CLAIMS system is created and the case is assigned an EAC number). One result is that, for now and the near future, only TPS applications and I-129s are being adjudicated with overtime funding, and many of the staff who had been working on the I-140 backlog are now having to work exclusively on I-129s or on the frontlog.
Delays in LCA Faxback Program
A Labor Condition Application (LCA), certified by the Department of Labor (DOL), is normally included with the H-1B petition. However, the processing time for LCAs has become longer and longer with the average wait ranging from two weeks to eight weeks. Please see below for instructions on submitting H-1B petition without certified LCA.
If you filed an LCA before the cutoff date posted on the DOL website and still haven't received it, or if you received an inappropriate denial, you can either send an email to LCAFax@doleta.gov or telephone 1-877-872-5627. The DOL website at http://workforcesecurity.doleta.gov indicates the filing cut-off date. Remember, however, that if you are inquiring about an LCA that you haven't received yet but it was filed after the cutoff date, the inquiry will not be answered.
INS Addresses H-1B Filings Without Certified LCA
Bill Yates, INS Deputy Executive Associate Commissioner for the Immigration Services Division, advised AILA's INS Benefits Liaison Committee in a March 21, 2001 meeting that INS will, at least for the time being, continue its long-standing practice of accepting H-1B petitions filed with only a copy of the labor condition application and proof of its filing with the Department of Labor. Also as is the current practice, INS will send a request for evidence to obtain the certified LCA before it completes processing of the petition. Mr. Yates agreed that, because such petitions would continue to be considered properly filed, beneficiaries of change of employer petitions may take advantage of the AC21 section 105 portability provision upon the filing of a petition in this situation. He acknowledged a discussion in the Department of Labor regulation that suggests that a certified LCA would be necessary for portability, but noted that the issue is under INS', not DOL's, jurisdiction. Mr. Yates did indicate that the policy of accepting H-1B petitions without certified LCAs is under review at INS and could be changed in the future, but that such change would not take place without a notice in the Federal Register, and would be prospective only if it occurs.
[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]
