Delays in Prevailing Wage Determinations for PERMs and H-1B Petitions

The Office of Foreign Labor Certification (OFLC) has reallocated significant staff resources within its organization to focus on completing the 3,500 H-2B wage redeterminations at the NPWC as expeditiously as possible. At the same time, OFLC has implemented plans to minimize delays in processing pending employer requests for H-1B and PERM prevailing wages. Despite the focus on H-2B prevailing wage redeterminations at the NPWC, employers continue to file H-1B applications for processing with the OFLC Chicago National Processing Center (NPC). Since July 1, 2011, the Chicago NPC has consistently received more than 7,600 new H-1B applications each week for processing, an average nearly identical to the same period last year.

In the H-1B program an employer is not required to obtain a prevailing wage from the NPWC. The Department's regulations provide the employer with the following alternative sources for obtaining a prevailing wage in support of an H-1B application:

• A wage rate set forth in a collective bargaining agreement (CBA);
• A wage rate for the occupation and area of intended employment under either the Davis-Bacon Act (DBA) or the McNamara-O'Hara Service Contract Act (SCA), which are available at http://www.wdol.gov;
• A wage rate produced by a survey conducted by an independent authoritative source that meets the requirements set forth in Departmental regulations at 20 CFR sec. 655.731; or
• A wage rate produced by another legitimate source of information, including the Bureau of Labor Statistics Occupational Employment Statistics Survey (OES) data, which is available at http://www.flcdatacenter.com

Annual Cap on Employment Based Immigrant Visas Reached 

The annual limit for employment preference authorizations for the 2011 Fiscal Year has been reached, according to a notice from the Department of State.   USCIS will continue to process applications normally, but the cases will be held in the Visa Office under the "Pending Demand" file until October 3, 2011.  At that time, all eligible cases that were entered into the Pending Demand file between September 15, 2011 and September 30, 2011 will be authorized, as long as they fall within the applicable October cut-off date.   The annual number of visas will be available for all employment categories for the 2012 fiscal year on October 1, 2011.

USCIS found in early August that demand for employment preference visas jumped in early August and an unusually large number of such cases were being processed and subsequently authorized.  This led to the cap being reached and the decision to hold cases in the Pending Demand file.  

USCIS Taking Steps to go Paperless

The Department of Homeland Security (DHS) is now supporting USCIS' move from a paper file-based system to a fully integrated and centralized case management system for the processing of immigration benefits. This transformation will allow USCIS to better manage multiple aspects of immigration services, eliminate the capture and use of redundant data and reduce the amount of forms required to be submitted which, in many cases, will be automated. According to DHS, this transformation process will be a multi-year initiative in which USCIS business processes and technology systems will be restructured.

In an advance copy of the DHS final rule related to this transformation process, it was noted that the agency will be removing references to form numbers, form titles, expired regulatory provisions and descriptions of internal procedures. In addition, DHS is working toward finalizing interim rules that will allow for the submission of benefit requests with electronic signatures in cases where those requests are submitted electronically.

Secure Communities Program under Fire

The federal government's Secure Communities program continues to be the cause of much controversy in the United States. A group in Chicago has now filed a class-action lawsuit against the Department of Homeland Security, in which they claim that the Secure Communities program is unconstitutional.

DHS has expanded Secure Communities from 14 jurisdictions in 2008 to more than 1,300 today, including all jurisdictions along the Southwest border. DHS is on track to expand this program to all law enforcement jurisdictions nationwide by 2013. 

New Registration Requirements for Foreign Workers and Students in the Bangalore Region

The Bangalore Foreigners' Regional Registration Office (FRRO) now requires all foreign nationals who will work or study within its jurisdiction to register, regardless of the length of their intended stay in India. Previously, those working or studying in the Bangalore region for less than 180 days were not required to register. Dependent family members accompanying an employment visa holder remain exempt from the registration requirement if they will remain in India for less than 180 days.

Employment visa holders and their spouses are also subject to new documentary requirements when registering or applying for a visa extension with the Bangalore FRRO. When registering, foreign workers must now submit a declaration from their sponsoring employer stating that no suitable Indian worker was available for the position they will fill. They must also submit a copy of their Indian tax ID card, known as a PAN Card, or a receipt acknowledging they have applied for one. Employment visa holders applying to the Bangalore FRRO to extend their visas but who did not meet the recently-imposed minimum salary requirement when they first entered India must also submit a letter from the relevant Provident Fund (PF) office stating that they meet the requirement now. The Bangalore FRRO also clarified that the salary breakdown required for registration and visa extension applications must be submitted on the sponsoring employer's original letterhead, and must bear the appropriate company seal and authorized signatures.

Spouses of employment visa holders registering at the Bangalore FRRO must now submit a copy of their marriage certificate with an apostille issued by the country where the marriage took place. If a spouse is already in India and does not have the necessary apostille, he or she may submit a declaration stating that an apostille will be submitted as soon as it can be obtained. Spouses must also submit a personal declaration stating they will not undertake any business or work-related activities while in India

accordingly.