Hello everybody. This is Cyrus Mehta. Welcome to this week's edition of immigration matters.
Given the limited amount of time that professionals have on an H-1B visa, it is imperative that the Department of Labor (DOL) reform its labor certification program.
The labor certification program has virtually broken down. An employer has to demonstrate that there are no U.S. workers available in order to sponsor a foreign worker for a green card. In most regions, applications for permanent labor certification are making very little or no progress. The process could take 4 years or longer. People only have a maximum of 6 years on the H-1B visa. The only exceptions are cases under the Limited Review or Reduction in Recruitment procedure. In fact, cases under these procedures are consuming the entire time and resources personnel at the expense of pending labor certification applications.
At a recent liaison meeting between the American Immigration Lawyers Association and the DOL, the DOL proposed streamlining its foreign labor certification program. This streamlining would probably align the program to the current labor certification application process involving H-1B petitions, where the employer has to make attestations instead of being micro-managed by the Labor Department. This proposal is not yet final and the DOL will begin talks about streamlining the process with Congressional staff.
Another issue involves someone who has filed a labor certification application about two years ago and has not yet heard about the application. He or she now wants to file a new application under the newer and more rapid Reduction in Recruitment procedure with the same employer. Under current DOL policy, an employer cannot have two labor condition applications filed for the same employee. If a new application under Reduction in Recruitment is filed, the employer will have to withdraw the original petition. However, the employee would then lose the original priority date.
At the liaison meeting, the DOL stated that it would reconsider its policy that prohibits filing the second labor certification application by the same employer and would also consider whether the first priority date can be retained.
With respect to H-1B petitions, the DOL is in the process of employing an automated Labor Condition Application filing system beginning January 1999. The applications have to be filed prior to filing the H-1B visa for a temporary work permit. When operational the system will have a response time of approximately one minute. Presently, the processing for labor condition applications range from 2 to 8 weeks, substantially delaying the employer's ability to quickly bring in a person on an H-1B visa. A one minute processing time would therefore be a remarkable phenomenon!
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This is Cyrus Mehta wishing you a wonderful weekend. See you again in 1999.