This is definitely positive news for individuals who will be running out of time on H-1B status.

If the lawsuit is successful, the court will certify classes, and all people who meet the class descriptions will receive the relief the court orders. The class members will not need to “sign up” with AILF to enjoy those rights.

Regarding “non-filers,” the government may try to, or the court may want to treat this class differently from the class of people who submitted applications for receipt in July.  

How soon will AILF file the law suit? Very soon. It is not easy or quick to prepare class action litigation involving numerous people and numerous claims, but AILF is working quickly because of the urgency of these events for so many people.

Injunction? AILF knows many people want a quick resolution. A temporary or ill-conceived order might create more chaos and confusion than we saw in late June / early July. And the government presumably would immediately appeal, creating even more confusion about whether applications were being accepted. By contrast, AILF intend to seek an injunction that will be forward-looking and will not create another crisis situation for AILA members or the government.

• EB-1, outstanding professors and researchers
• EB-2, members of professions and advanced degrees or exceptional ability not seeking a National Interest Waiver, and
• EB-3, workers other than skilled workers and professionals (i.e., unskilled labor requiring less than two years of training and experience.

Starting September 25, 2006 businesses will have the option of paying an additional $1,000.00 Premium Processing fee in exchange for a 15-calendar-day processing of their I-140 Immigrant Petition for Alien Worker. To see the USCIS news release on EB3 premium processing click here. For more information on Premium Processing services offered by the USCIS visit this link.

Employer sanctions, what are they?

Until the late 1980s it was not illegal for an employer to hire an undocumented worker. However, with the enactment of the Immigration Reform and Control Act of 1986 (IRCA), Congress made it illegal for employers to hire undocumented workers. IRCA’s rules are referred to as “employer sanctions.” There are three employer sanctions associated with IRCA: 1) Employers are prohibited from knowingly hiring a noncitizen who is not authorized to work fork for them; 2) Employers must verify the identity and work eligibility of all their employees, even if they are US citizens, by filling out an I-9 form and maintaining proper I-9 records. If an employee fails to comply with the verification requirements, the employer must refuse to hire them; and 3) Employers are prohibited from intentionally discriminating in hiring or firing an individual on the basis of an individual’s national origin or citizenship status.

1.                  First offense - $275 to $2,200 for each worker

2.                  Second offense - $2,200 to $5,500 for each worker

3.                  Third or more offenses - $3,300 to $11,000 for each worker

The penalty for paperwork violations (the failure to fill out and maintain I-9 records correctly) range from $110 to $1,100 for each I-9.

The severity of criminal sanctions that employers may face for violating the employer sanctions depends on the pattern and practice of the violations. The Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security (DHS) defines “pattern and practice” as “regular, repeated, and intentional activities.” Criminal violations are reserved for serious and repeat offenders who have clearly demonstrated an intention to evade the law. Criminal penalties can range from $3000 to 6 months in jail.

Recent trend in prosecutions

The Bush administration has recently signaled its intent to get tough on employment sanction violations. As a result ICE has begun a shift in enforcement by focusing on employers that are knowingly hiring undocumented/unauthorized workers. Such employers are facing criminal charges and seizure of assets rather than administrative fines. Therefore, with this new emphasis on prosecution, employers should make sure that they have an effective employer sanctions compliance program.

Tips for maintaining and Employer Sanctions Compliance Program

1. Set up internal protocols for handling I-9 forms, including training.
2. Do regular audits of your I-9 forms.
3. Complete section one of the I-9 form on the first day that an employee begins work. The remainder of the I-9 form must be completed within three business days. If a worker fails to bring the documentation required by the I-9 within that time period, you may fire them.
4. Do not request specific documentation from worker to verify employment eligibility. Let the workers choose from the list of acceptable documents listed on the I-9 form.
5. Do not accept any documents that are not originals except for those stated on the I-9 form.
6. If an employee provides a document that is not listed on the I-9 form, hand the document back to the employee and ask for another one from the I-9 list.
7. If during a review of your records you discover that I-9 forms from certain employees are missing, get the documentation from those individuals immediately.
8. If documentation provided by employees looks genuine on its face, do not ask for more proof as this can subject you to a national origin discrimination claim.
9. Keep all I-9 records for three years after the date of hire or one year after the date of dismissal, whichever is later.
10. Treat all employees and job applicants equally.

1.WHAT IS THE "QUOTA BACKLOG"?
The Immigration and Nationality Act sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a "Priority Date." The priority date is the single, most important, factor in any immigration case.

2.WHAT ARE THE DIFFERENT EMPLOYMENT-BASED PREFERENCE CATEGORIES?
Employment-Based First Preference (EB-1) Employment-Based Second Preference (EB-2) Employment-Based Third Preference (EB-3) Other Workers

3.WHAT DOES EB-1 MEAN?
Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

4.WHAT DOES EB-2 MEAN?
Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master's or Ph.D.) (The position must be one that requires a Master's or
Ph.D. to perform the duties - the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company's job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor's degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master's level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

5.WHAT DOES EB-3 MEAN?
Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

6.WHAT DOES "OTHER WORKERS" MEAN?
Other Workers includes positions that require less than two years of experience.

8.WHY IS THE PRIORITY DATE IMPORTANT?
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the State Department each month.

9.CAN I GET AHEAD ON THE QUOTA BACKLOG LIST?
There is no way to get ahead on the list, other than filing an Immigrant Visa Petition in a higher preference category, provided that the individual and/or their position meet the criteria to do so. Otherwise, the individual must wait until eligible to apply along with others on the list before proceeding with filing the last step in the green card process. The last step is accomplished by filing an application to adjust status to that of a lawful permanent resident in the U.S., or by obtaining an immigrant visa at a U.S. Consulate abroad.

10.THE I-140 FILED ON MY BEHALF WAS BASED ON A LABOR CERT SUBSTITUTION. WHAT IS MY PRIORITY DATE?
The Priority Date is determined by the CIS. We will know the Priority Date upon issuance of an I-140 Petition Approval Notice.

11.WHAT IS THE DIFFERENCE BETWEEN THE VISA CATEGORY BEING "U" (UNAVAILABLE) AND " MM/DD/YY" (QUOTA BACKLOG)?
Unavailable means that there are no more visas available at all for the month. If there is a date noted (i.e. 07-01-02), it is considered to be the cut-off date, and that means that there is a "quota backlog". Only individuals who have a priority date earlier than the cut-off date may move forward with the permanent resident process.

12.WHAT DOES "C" MEAN?
"Current" - this means that there is no quota backlog in this category.

13.WHAT DOES IT MEAN TO BE "CURRENT"?
If there is a "C" in your employment-based category on the Visa Bulletin, then there is no quota backlog and you may proceed with your I-485 adjustment application or immigrant visa application.

14.IF THE VISA BULLETIN SHOWS A DATE OF 6-1-02 AND MY PRIORITY DATE IS 6-1-02, IS MY PRIORITY DATE CURRENT?
No. In order for the priority date to be current, it must be a date prior to the date published in the visa bulletin.

15.HOW OFTEN DO THE BACKLOGS CHANGE AND WILL THEY IMPROVE?
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. (i.e., on 9-12-05, the DOS released the dates effective as of 10-1-05). Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

16.THE CUT-OFF DATE IS JANUARY 1, 2000. DOES THIS MEAN THAT IT WILL TAKE 5 YEARS BEFORE THE PRIORITY DATE WILL BECOME CURRENT?
No. It all depends on how many visas are used. Please see the answer to the above question.

17.I HAVE AN APPROVED I-140 PETITION WITH MY PREVIOUS EMPLOYER AND MY CURRENT EMPLOYER IS SPONSORING ME NOW FOR A GREEN CARD. WHAT IS MY PRIORITY DATE?
You may use the Priority Date attached to the approved I-140 Petition. The Priority Date will be printed in the top portion of the Form I-797 Approval Notice. You may use this priority date when you are eligible to file your adjustment or immigrant visa application based on your current employer's green card process.

18.VISA AVAILABILITY IS BASED ON COUNTRY. IS THAT COUNTRY OF CITIZENSHIP OR COUNTRY OF BIRTH?
Your country of birth is what determines your country of chargeability.

19.MY SPOUSE WAS BORN IN A DIFFERENT COUNTRY THAN I WAS. SINCE THE I-485 IS BASED ON MY EMPLOYMENT, DOES MY SPOUSE'S COUNTRY OF BIRTH HELP ME?
Your spouse's country of birth may also be used to determine chargeability. For instance, if you were born in India, but your spouse was born in France and there is a quota backlog for India, but no quota backlog for France in your preference category, you and your spouse may proceed with your immigrant process based on your spouse's country of birth.

20.BOTH MY WIFE AND I WERE BORN IN INDIA AND MY PRIORITY DATE IS NOT CURRENT. OUR CHILD WAS BORN IN THE UNITED KINGDOM AND THE PRIORITY DATE FOR THAT COUNTRY IS CURRENT? CAN WE USE OUR CHILD'S COUNTRY OF BIRTH FOR ELIGIBILITY?
No. You can use your spouse's country of birth for eligibility. However, your child's country of birth cannot be used.

21.I HAVE HEARD THAT ONLY THOSE INDIVIDUALS FROM INDIA AND CHINA ARE SUBJECT TO QUOTA BACKLOGS. I WAS NOT BORN IN ONE OF THOSE COUNTRIES. DO QUOTA BACKLOGS APPLY TO ME?
Yes. Quota backlogs can apply to everyone, regardless of where they are from. While the backlogs have typically affected some countries more than others, note that on the October Visa Bulletin, the backlogs apply to all countries for the EB-3 preference category.

22.MY EMPLOYER HAS A LABOR CERTIFICATION PENDING ON MY BEHALF. DO QUOTA BACKLOGS AFFECT THE PROCESSING OF THE APPLICATION?
No. The labor certification process is not affected by quota backlogs.

23.CAN I CHANGE THE VISA CATEGORY AND/OR REFILE THE LABOR CERTIFICATION TO GET AROUND THE QUOTA BACKLOGS?
No. The visa category cannot be changed once the labor certification (or I-140 if there is no labor certification) has been filed. Also, since quota backlogs are based on the filing date, it is not in your interest to refile a case now and obtain a 2005 or later priority date.

24.THE LABOR CERTIFICATION FILED ON MY BEHALF WAS APPROVED. CAN THE COMPANY STILL FILE THE I-140 PETITION IF THE PRIORITY DATE IS NOT CURRENT?
Yes. The filing and adjudication of an I-140 is not affected by the quota backlogs.

25.MY I-485 WAS ALREADY APPROVED. HOWEVER, MY DEPENDENT'S APPLICATION IS STILL PENDING AND MY PRIORITY DATE IS NO LONGER CURRENT. IS MY DEPENDENT'S APPLICATION AFFECTED BY THE QUOTA BACKLOG SINCE MY APPLICATION IS APPROVED?
Yes. Even through your case was approved, your dependent's application is still based on your priority date. The CIS cannot approve the dependent's application until the priority date is current.

26.THE QUOTA BACKLOGS WERE NOT IN AFFECT WHEN I FILED MY I-485 APPLICATION. DOES THIS OCTOBER QUOTA BACKLOG AFFECT ME?
Yes. The CIS can work on the pending application. However, they cannot approve the application unless the priority date is current.

27.THE I-140 AND I-485 WERE CONCURRENTLY FILED AND BOTH ARE PENDING AT CIS. WILL THE I-140 BE PROCESSED IF THE PRIORITY DATE IS NO LONGER CURRENT AND THE I-485 CANNOT BE APPROVED?
Yes. The CIS will continue to process the I-140 and it can be approved, regardless of the quota backlog.

28.CAN I INQUIRE REGARDING THE STATUS OF AN I-485 CURRENTLY PENDING AT CIS IF I AM SUBJECT TO A QUOTA BACKLOG?
No. Under CIS guidelines, inquiries may not be made on a case unless the priority date is current.

29.IF MY I-485 APPLICATION IS STILL PENDING, AND MY PRIORITY DATE IS NO LONGER CURRENT, WILL CIS STILL ISSUE A FINGERPRINT NOTICE AND/OR RFE?
They may. CIS can still process the case but cannot approve it until the priority date is current. Therefore, you may receive requests for evidence or fingerprint appointments. It is important to comply with these requests. Even though the case cannot be approved, it can be denied for failure to provide information or show up for fingerprinting.

30.MY I-485 HAS BEEN PENDING A LONG TIME DUE TO SECURITY AND BACKGROUND CHECKS. ONCE THEY CLEAR, CAN MY CASE BE APPROVED IF MY PRIORITY DATE IS NO LONGER CURRENT?
No. Even though the only issue may have been the security and background checks, the CIS cannot approve the case until the priority date is current.

31.DOESN'T CIS ASSIGN ME A VISA NUMBER WHEN THE CASE IS FILED?
No. Immigrant visa numbers are not assigned to a case until right before approval.

32.CAN I STILL OBTAIN EAD CARDS AND AP DOCUMENTS IF MY I-485 IS PENDING AND I AM NOW SUBJECT TO A QUOTA BACKLOG?
Yes. As long as you have a pending I-485 application at CIS, you are eligible to apply for and receive EAD and AP documents.

33.MY ADJUSTMENT APPLICATION IS PENDING AND I RECENTLY MARRIED. CAN I ADD MY SPOUSE TO THE APPLICATION (LE. CAN MY SPOUSE FILE THEIR I-485) IF MY PRIORITY DATE IS NOT CURRENT?
No. In order to add a dependent to the pending application, the priority date must be current.

34.MY FINGERPRINTS HAVE ALREADY BEEN TAKEN. HOWEVER, DUE TO THE QUOTA BACKLOG, THEY MAY EXPIRE. WILL CIS REQUIRE ME TO REDO MY FINGERPRINTS ?
Yes. Fingerprint results expire after 15 months. CIS will review the fingerprints at the time that they are ready to complete the adjudication of the I-485. If the results have expired, they will send out a new fingerprint appointment notice.

35.IF THE CASE IS PENDING AT CIS AND CANNOT BE APPROVED DUE TO QUOTA BACKLOGS, WILL I BE REQUIRED TO PROVIDE ANY UPDATED INFORMATION OR DOCUMENTS?
The CIS may ask for updated employment information. However, new photos and medical exams should not be required.

36.IF I AM NOT ABLE TO FILE THE I-485 DUE TO QUOTA BACKLOGS, IS THERE ANOTHER WAY FOR MY H-4 SPOUSE TO OBTAIN WORK AUTHORIZATION?
An I-765 (EAD) application cannot be filed unless an I-485 is pending. Therefore, your spouse will not be eligible for an EAD card and will need to seek employment sponsorship for work authorization.

37.IF I-140 PETITION FILED ON MY BEHALF IS STILL PENDING AND MY PRIORITY DATE BECOMES CURRENT, MAY I FILE MY ADJUSTMENT APPLICATION?
Yes, if you have an I-140 Petition pending and your Priority Date becomes current, you and your dependents may file your adjustment applications as long as the Priority Dates remains current.

38.I AM RUNNING OUT OF H-1B TIME. WHAT WILL HAPPEN TO MY H-1B STATUS IF THE QUOTA BACKLOG HOLDS UP MY GREEN CARD APPLICATION?
The AC21 legislation provided some relief in this area. If you have an approved I-140 and you are unable to proceed with the I-485 due to quota backlogs, the company is eligible to apply for extension of H-1B time, in increments of three years, on your behalf. Your dependent's H-4 status may also be extended.
If you are not the beneficiary of an approved I-140 petition, you may still be able to obtain extensions, in one year increments, as long as the labor certification or I-140 petition have been pending more than 365 days.

39.IF I AM NOT ABLE TO FILE THE I-485 AND THEN I LOSE MY JOB OR CHANGE JOBS, DOES AC21 PORTABILITY PROTECT ME?
No. In order to take advantage of AC21 portability, the I-140 Petition must be approved and the I-485 must be filed and pending over 180 days.

40.DUE TO THE QUOTA BACKLOGS, I WANT TO REVIEW MY OPTIONS FOR IMMIGRATING THROUGH A US CITIZEN. I HAVE MINOR US CITIZEN CHILDREN. I HAVE A US CITIZEN SPOUSE. CAN THEY SPONSOR ME FOR PERMANENT RESIDENCY?
Unfortunately, a child cannot sponsor you for permanent residency until they are at least 21 years old. However, if you have a US citizen child who is over 21 or a US citizen spouse, please contact us to discuss your options.

Many have asked, how will this retrogression affect my pending I-485 application? The processing is completed in the order of priority date. The priority date is the date that your Labor Certification application was accepted for processing and this determines where you stand in the line of processing. Cases that are already filed and being worked on by the USCIS may still be processed, but an approval could not be issued until your priority date becomes current. Similarly, if your I140 is pending or approved, an I485 application cannot be filed on your behalf until the priority date becomes current. In many cases this could take several years.

On the bright side, an applicant will be able to obtain a 3 year extension on the H1B & H4 visas if the I140 is approved and retrogression is still in effect. Spouses however on H4 will be unable to work, as the EAD cannot be filed until filing of the I485. If a 485 has already been filed on your behalf, but is now subject to the retrogression, you will be able to obtain EAD for you and your dependants until the 485 is processed. If you are the main applicant, but the case included a spouse that was born in a country that still has available visa numbers, you could file 485 through your spouse's birth country.

Immigration laws are constantly changing, and cause-effect becomes a major issue when looking into the positives and negatives of each change. Staying current and up to date is important when making long term future plans and goals. We will continue to research and update you on retrogression as new information is released. To find out specifically how retrogression may effect your immigration status, please contact our office to discuss with an attorney.

*There are two types of calculations performed by the Perm system: Time Period Calculations and Time Line Calculations.

*Time Period Calculations are those verifying the number of days an activity took place (an example would be verifying that a job order ran for 30 days). When calculating Time Periods, the day the event occurred is counted as day one and the last day of the event is included in the count.

*Time Line Calculations are those verifying the number of days prior to or after an event (an example of this is verifying the advertisements did not run less than 30 days or more than 180 days from the date of filing). When calculating Time Lines, the day the event occurred is not counted. The next date is counted as day one and the last day of the event is included in the count."

Based on the above information, it is important for petitioners and their attorney's to make sure that their applications meet these time period and time line calculations in order to avoid a denial. Please refer to our May 2, 2005 posting regarding PERM denials for more information on this topic.

WHAT IS AN AUDIT?

Unlike the Reduction in Recruitment (RIR) or Traditional Processing (ROR) processes, which required the employer to provide documentary evidence when filing the application, the PERM process allows the employer to file the application to the Department of Labor without submitting any supporting documentation. The regulations guide the employer as to what is required for filing a PERM application, and instruct that all documentary evidence should be maintained by the company for a period of five years. In most instances, when a government agency allows filings to occur without the submission of documentation (i.e. income tax return) they establish an audit procedure to ensure compliance with the government regulations. In basic terms, a PERM audit is merely a request by the government for the employer to provide documentary evidence, which proves all information that the employer attested to in the PERM application. The audit determines that all statutory and regulatory requirements have been met for the PERM application. The DOL will determine the following when processing the PERM application: 1) Did the employer meet the procedural requirements of the regulations; 2) Was the U.S. labor force tested and no qualified U.S. workers were found; 3) Will the employment of the alien have a damaging effect on wages and working conditions for U.S. workers likewise employed. The following are examples of what a PERM audit may review: are the employer's job requirements too restrictive, does the wage offered by the employer meet the prevailing wage requirements, did the employer conduct proper recruitment and adequately test the U.S. labor market. An employer should gather and organize all documentation into a comprehensive file prior to submitting the PERM application. This documentation should be kept readily available in the event of an audit by the DOL for a period of five years. The DOL will no longer be issuing "Notice of Findings" (NOFs) as they had previously with the prior RIR and ROR systems. In the past, NOFs had allowed the employer to have an opportunity to correct any oversights that may have occurred in the application and resubmit the application for continued processing. The new PERM system will not issue NOFs, instead an audit letter will be sent to the employer requesting legal analyses and business necessity documentation in reference to the particular application under audit.

There will be two types of audits performed by the DOL. The first is the "targeted" audit, which occurs when the DOL finds a specific fault with the application, and the second is the "random" audit, which will assist the DOL in ensuring the integrity of the new PERM system and its' regulations. In the next few paragraphs we will explain several of the reasons that may trigger an audit in your PERM application.

The DOL will attempt to verify whether or not the company is a bona fide business entity and how many employees are on the company payroll. Smaller businesses will be at a higher risk for these types of audits. The ETA 9089 (PERM application) includes questions regarding how many workers a business employs, and in what year the company started doing business. The answers to these questions may cause the auditors to research the employer's tax identification number, verify the U.S. address of the employer, and ultimately send out an audit letter to the company to authenticate that the company is a verifiable business entity with the ability to employ the worker.

Another common audit may be the question of ability to pay. Usually the employer provides financial evidence at the I-140 stage of the Green Card process; however, the DOL may issue an audit letter to verify that the employer has the ability to pay the prevailing wage during the PERM review process. The employer will need to prove that the company has sufficient funds to pay the prevailing wage, and show that the company will be putting the alien on payroll on or before the alien's proposed arrival to the United States. The DOL may also audit to obtain a copy of the "Prevailing Wage Determination," that was issued to the employer by the State Workforce Agency (SWA). They will use the prevailing wage determination to verify that the wage listed on the PERM application is correct and valid for the position and location of the job.

As we have previously stated, it is critical that employers maintain detailed files on all recruitment efforts that are made for a PERM application. An audit may request copies of all recruitment efforts that were taken for a particular application and a detailed outcome of these recruitment steps. This type of audit will corroborate that all the required recruitment efforts were executed within a 6 month period of filing the application and that the employer made a good faith test of the U.S. labor market before applying for PERM. The employer should maintain information on each applicant and detail the reason/s why they were not qualified for the position offered. Resumes, interview questionnaires, and a comprehensive recruitment report may be requested to show that recruitment took place and each applicant was considered for the position.

Another "red flag," for the DOL auditors would be substantial lay offs within 6 months prior to the filing of the application. The DOL is able to cross check databases to determine if the employer has had any lay offs, and would issue an audit requesting documentation that laid off workers were given notification and consideration for the position prior to the filing of the PERM application.

As PERM is an online system, a critical concern for audit may be, "Uniformity in Employer Job Requirements". The DOL will have easy access to all cases filed by an employer and may look for inconsistencies in job requirements and job descriptions for each applicant. For example, if an employer is filing numerous Software Engineer positions with the minimum requirements as a Bachelor's degree and 3 years of work experience, then in order to obtain the EB2 category for a particular applicant, files the same job title and job description with the minimum requirements as a Master's degree and 2 years of experience, an audit may occur.

AUDIT CONDUCTED AND CONSEQUENSE?

A PERM labor certification may be examined and immediately certified or an audit may be issued before a final determination is made by the DOL. The audit letter should include the following information: 1) state the documentation that is to be submitted; 2) state the due date of the requested documentation; 3) advise that the application will be denied if employer fails to submit the documentation, and that no administrative or judicial relief will be available. The employer must submit the response to the audit letter within 30 days and will be given a "one time only," 30 day extension if "good cause," is provided when requesting the time extension. The DOL stresses that employer should avoid requesting extensions, as it has been repeatedly emphasized that the employer should not submit any application until they have a comprehensive file consisting of all evidence for the PERM application. To this end, the DOL feels that the employer should be prepared to answer any audits and extensions will rarely be granted. Once the employer responded to the audit letter, a certifying officer will review the response and decided if the documentation is adequate hence certifying the applicant; additional supplemental information is needed before a decision is made; or that the case is denied and any future labor certifications will need to be prepared under DOL supervised recruitment.

The denial of a labor certification or supervised recruitment is not the most awful consequences of an audit letter, although these are definitely not pleasant, it is important to remember that criminal proceedings against the employer, alien, agent, or attorney can occur if the laws and regulations are not abided by. Employers and aliens will be asked to sign the ETA 9089 forms under penalty of perjury once an approval is issued. If a misrepresentation occurs and is later discovered in the I140/485 stage, the consequences could be grim for all parties involved.

CONCLUSION

It is very important to keep in mind that the DOL will make its initial decisions to certify the labor certification based on the information found within the four corners of the ETA 9089. If the ETA 9089 is detailed and provides all the relevant information, then it is likely that an audit could be avoided altogether. In the event that an audit letter is issued employers must make sure that they keep diligent files about each PERM case, including meticulous recruitment summaries and copies of all documentary evidence. As this system is very new and updated information about regulations and tips for filing PERM application are released on a regular basis, it is advisable to speak with an immigration attorney to assist with any questions or concerns when filing a PERM Labor Certification application.

Question: What is the process by which an employer registers and files an application on line?
In order to file permanent labor certification applications on-line, the employer must have a Permanent Online System account, username, password, and PIN. The account allows for the preparation and management of applications on-line, the username and password are necessary to access the account, and the PIN is required to submit applications on-line.

Permanent Online System account - An account is created after an employer has submitted registration information on-line at www.plc.doleta.gov and the employer information is verified by DOL. Account creation is a means by which to control filing authorization and to provide account holders filing management capabilities. An employer must be registered and be in possession of a PIN in order to file applications on-line. Upon verification of the employer's information, a password and confirmation of the account holder's username are sent to the employer in one email and, for security reasons, the PIN in another. It must be noted that upon accessing the account for the first time, the system requires the DOL password be changed to a new password. It is critical that the employer be aware of and know the new password, as only an individual in possession of the account's valid username and password is able to access the account.

Sub-account - The holder of a Permanent Online System account is able to create multiple sub-accounts with individual usernames and passwords for persons authorized by the employer to file applications in its name, to include attorneys and agents. It is a means by which to provide the employer the security of ensuring only persons authorized by the employer are filing on the employer's behalf. In creating a sub-account, the employer is able to designate whether the sub-account holder is the employer's employee, the employer's agent or the employer's lawyer. The employer is also able to designate the level of security access available to the sub-account holder.

NOTE: While the employer is permitted the opportunity to designate persons to represent the employer in the application filing process, the employer must recognize that ultimate responsibility for the accuracy of all representations made by such designated persons rests with the employer. Therefore, the employer is encouraged to establish measures designed to ensure only legitimate dissemination and use of account information.

Federal Employer Identification Number (FEIN) - The FEIN is provided to the employer by the IRS. It is a means by which the Department of Labor (DOL) verifies the bona fides of the employer and ensures that only legitimate employers are able to avail themselves of the labor certification process. In order to satisfy the definition of employer for purposes of labor certification, all employers, including employers of household domestic workers, must possess a valid FEIN.

Username - The username is a log-in name provided by the employer registrant. After registration, upon successful employer verification, confirmation of the username is emailed to the employer by DOL. It is a means by which to identify the account holder and establish access authority. Each username is unique; duplications are not accepted.

Password - An initial password is provided by the Permanent Online System. After registration, upon successful employer verification, the temporary password is emailed to the employer by DOL. Upon activation of an account after registration,the individual initially accessing the account is required to create a new password.
The password is a means by which to identify the account holder and establish access authority. NOTE: An account can only be accessed by the holder of the username and password. Where the password is changed, only an individual with the user name and the new password will be able to access the account.

Personal Identification Number (PIN) - The PIN is provided to the employer after registration upon successful employer verification by DOL. It is a means by which to safeguard on-line filing. Only an individual in possession of a PIN is able to actually submit a labor certification application on-line. The PIN used in submitting an application must be the PIN of the employer named on the application filing the application.

Question: Where the employer has established a sub-account for an attorney or agent, is the attorney or agent permitted to submit applications on-line?
Yes, an attorney or agent may submit applications under the following
circumstances. An employer must complete the registration process as explained at http://www.plc.doleta.gov, including the initial log-in. During the initial log-in, the
employer will change the employer's temporary password (as assigned by the system during registration) and once logged-in, the employer can establish a subaccount for an attorney or agent. The employer will select a username for the attorney or agent, and the system will assign a temporary password. The attorney or agent will receive an e-mail with the username, temporary password, and the employer's PIN. When the attorney or agent logs in and changes the attorney's or agent's password, the attorney or agent is then permitted to complete and submit applications on-line on behalf of the employer using the PIN of the employer in whose name the application is being filed.

Question: How can the employer ensure that no unauthorized use of the employer's personal identification number (PIN) and/or usernames and passwords exists?
The employer is able to view all applications filed under the employer's account, to include all applications filed under the employer's sub-accounts, and we recommend employers implement a mechanism by which to identify any unauthorized use of the employer's PIN and/or usernames and passwords. We also recommend employers require those persons to whom sub-accounts have been assigned to carefully monitor the accounts for unauthorized activity. If the employer uncovers unauthorized use of the PIN and/or usernames and passwords, the employer must immediately contact the Department of Labor at PLC.HELP@DOL.gov.
NOTE: The employer is advised to set up a sub-account for the attorney or agent. Thereafter, the attorney or agent, using the sub-account's username and password, will be able to access the sub-account and be able to do what is required and/or needed to file labor certification applications on behalf of the employer, depending on the level of access granted by the employer. In filing applications for an employer, the attorney or agent must use the employer's PIN, which is provided to the attorney or agent upon creation of the sub-account along with the sub-account's own username and password. The employer is cautioned that ultimate responsibility for the representations of its attorney and/or agent rests with the employer.

Question: If a parent entity wishes to centralize administration/control over PERM filings of its subsidiaries having different FEINs, can the parent company create sub-accounts for each subsidiary and then permit each subsidiary to assume responsibility for its own filings?
No, a parent company can not create sub-accounts for subsidiaries having FEINs different from that of the parent company in order to centralize administration and control. When an application is being completed using a sub-account, employer information from the main account, including FEIN and address, is automatically populated into the application and that information can not physically be changed or altered.

Question: Will the National Processing Centers issue confirmations of receipt for mail-in applications?
No, the National Processing Centers will not issue confirmations of receipt for mail-in applications. If the employer wishes to maintain a record of having mailed the application, it is recommended that a mail service which provides such documentation be used.

Question: Are there any circumstances under which mailing in a labor certification application would prove more successful than electronically submitting an application on-line?
No, mailing in an application will not prove more successful, as the mailed-in application, upon receipt at the National Processing Center, is date stamped. Until the application is data entered into the system by a data entry person (using the exact information shown on the ETA Form 9089), processing will not begin on the application. Once entered in the system, the mailed-in application receives the exact same automated analysis and manual scrutiny as an application submitted electronically. If there are two identical applications, one submitted electronically and one mailed-in, there will be no difference in how they are processed. The only difference will be in processing time; a mailed-in application will take longer, as not only mailing but also the data entry time will be involved. Remember: the on-line system will identify mistakes (e.g. entering four digits for a zip code instead of five digits) before allowing the application to be submitted, but the data entry person must enter the information exactly as shown on the application; a mistake on the form may trigger an audit or denial.

WITHDRAWAL

Question: How can a pending application filed under PERM be withdrawn?
If the application was filed on-line, the application can be withdrawn by accessing the account wherein the application was filed and simply marking the appropriate box. If the application was filed by mail, a withdrawal request, in writing, must be sent to the National Processing Center to which the application was originally submitted.

Question: Must the employer wait to receive confirmation of withdrawal from a Backlog Elimination Center (BEC) prior to refiling an application?
No, the employer does not need to wait to receive confirmation of withdrawal prior to refiling an application.

RECRUITMENT

ADVERTISEMENT

Question: Is it possible to provide more specific guidelines for drafting PERM advertisements? For example, where there are multiple openings for the job offered which of the following, if not all, would be acceptable: "5 Attorneys," "Attorneys" or "Attorneys, multiple openings"?
As stated in the advertising requirements provision, the advertisement must provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity for which certification is sought. At issue in evaluating whether the advertisement meets this criterion is whether the advertisement is written to attract the interest of the greatest number of qualified U.S. workers and encourage them to apply, not whether specific words or phases have, or have not, been used. The advertisement will be reviewed to ensure that it reasonably describes the vacancy and reflects the job opportunity as described on the ETA Form 9089. With respect to the examples, any one of the three can be used as long as it is specific enough, under the circumstances, to apprise U.S. workers of the job opportunity. In any event, if employers feel it necessary, employers may always include more detail.


JOB ORDER

Question: Must the employer contact all individuals identified as a "match" by a computerized state employment system or must the employer only contact those applicants who have submitted a resume and/or response as specified by the employer in the job order?
The employer is responsible for considering/contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.

Contact Information for the Service Centers is:

Dallas Backlog Pcocessing Center
ETA/DFLC Backlog Processing Center
U.S. Department of Labor
700 North Pearl Street
Suite 400 N
Dallas, TX 75201
Phone: 214-237-9111
Fax: 214-237-9135

Philadelphia Backlog Procesing Center
ETA/DFLC Backlog Processing Center
U.S. Department of Labor
1 Belmont Avenue
Suite 200
Bala Cynwyd, PA 19004
Phone: 484-270-1500
Fax: 484-270-1600

Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or business persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States. Section 501 of H.R. 1268 amends INA by adding a new category of E treaty visa. This amendment creates a new INA Section, Section 101(a)(15)(E)(iii), which allows for the admission of an alien who is a national of the Commonwealth of Australia, and who is entering to perform services in a "specialty occupation."

What is a specialty occupation?

The term "specialty occupation" means an occupation that requires theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor's or higher degree in the specific specialty or its equivalent as a minimum for entry into the occupation in the United States. The definition is the same as the Immigration and Nationality Act definition of an H-1B "specialty occupation."

What is required of petitioning employers?

The petitioning employer will be required to file a Labor Condition Application (LCA) with the Secretary of Labor as required under Section 212(t)(1) of the INA. The process for filing the LCA should be similar to the process currently used with H-1Bs. Employers must also make the same attestations that they make for H-1B petitions including those regarding paying the prevailing and actual wages, not breaking up strikes, maintaining public access files, etc.

Is there a limit on the number of E-3 visas that will be issued?

The number of E-3 visas that will be issued will be limited to 10,500 per fiscal year. The spouse and children of the E-3 are allowed to accompany or follow to join the principal, and such spouses and children will not count against the 10,500 cap.

What are the time limits on E-3s?

The E status is open-ended and may be extended in two-year increments indefinitely

Can spouses of E-3s work?

Unlike H-4s, spouses of E visa holders are entitled to work authorization.

Can I convert from H-1B to E-3 status?

The statute does not bar this and it should be possible to change from H-1B to E-3 status.

When can I file for an E-3?.

In theory, applications can be submitted immediately as implementing regulations are not required. In practice, USCIS may not adjudicate these cases until they have at least established guidelines.

A person might also simply be able to apply for an E-3 at a consulate and bypass USCIS. The applicant would need to present an LCA and the other documents required above, but USCIS should not have to approve it in advance. This would allow E-3 applicants to secure visas within days of applying and be in the US quickly.

However, we have to wait until the USCIS and Department of State issue more guidance on this.

Is the E-3 a dual intent visa?

E-3 visas are not dual intent visas in the sense of H-1B visas and L-1visas. However, they do not have a foreign residence requirement. Applicants need to attest that they intend to depart when their status terminates. A statement is usually enough unless they have clear intentions showing the opposite.

The total number of visas used from the "bank" may not exceed 50,000.

Does the 24-30 month processing projection apply to both RIR and TR cases or will RIR cases get some preference?
The DOL will not automatically give preference to RIR cases over TR cases. However, the DOL does anticipate that the processing time for RIR cases will be shorter (presumably because recruitment has already been conducted in RIR cases).

Are cases that are being sent to BPC being assigned new case numbers for tracking purposes or are they retaining the case numbers originally assigned to them by the State Workforce Agencies (SWA) or Regional Offices?
All case are being assigned new case numbers once they are entered into the Permanent Backlog System (PBLS). Once a case has been entered into the PBLS, the BPC will send the employer and attorney of record (if applicable) a letter with a new case number.

When will I receive my 45-day letter?
Due to the large volume of files transferred to the two Backlog Processing Centers, DOL cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center. In the designated space at the bottom of the Selection of Continuation Option Letter, the petitioner should indicate decision as to whether they wish to withdraw this application or they wish to continue the processing of this application with a check mark.

The beneficiary of the labor certification has a child who is about to "age-out," can the DOL expedite this case?
The DOL prohibits the expediting of applications.

The petitioning company has been acquired by another company. The new company wants to continue the petition. What needs to be done?
The new employer must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity and establishes the legal buyout or "successor in interest" position. In addition, a new Form ETA 750 Part A and Part B must be submitted to the DOL to continue the permanent foreign labor certification process.

The message on my Corrections List states, "The Employer's name/address is not the same on Form ETA 750 Part A and Part B." What do I need to do?
Please refer to item 6 on Form ETA 750 Part A and item 8 on Form ETA 750 Part B. These items must match exactly on your application. Initial and date any corrections you make on your application and return it to the appropriate Backlog Processing Center.

The message on my Corrections List states, "Basic Rate Per is required entry." The amount of pay is included on the application. What's the problem?
Item 12a/b on Form ETA 750 Part A must include both a rate of pay (in dollars and cents) and a period (hourly, daily, weekly, bi-weekly, monthly, or annually).

Does the BPC case continuance letter need to be signed only by the employer or can the attorney of record sign?
Either the employer or attorney of record may sign. The DOL however requests that the employer coordinate with the attorney to determine who will submit the continuance letter to ensure that the appropriate BPC does not receive duplicate or conflicting responses. In the event of conflicting responses, the BPC will default to the employer's response.

The message on my Corrections List states, "Failed Existence Check: Employer's address/phone number does not reference back to employer's name." What should I do to resolve this problem?
You must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity at a specific address to the appropriate Backlog Processing Center.

The message on my Corrections List states that, "Consulate Location is a required entry." The beneficiary is currently in the U.S. and will apply for adjustment here. Why must I enter a consulate location?
Entries are needed in items 10a or 10b on Form ETA 750, Part B. Please mark the appropriate box with an (X) and enter a complete city and foreign country (10a) or city and state (10b) on the application. Initial and date any corrections made to your application and then return the application to the appropriate Backlog Processing Center.

The employer has moved to a new address. How should we notify the Backlog Processing Center of this change?
Send the appropriate Backlog Processing Center a written request to return the original Form ETA 750 Part A and Part B. Make the appropriate change of address, date and initial the change, and return the Form ETA 750 Part A and Part B to the appropriate Backlog Processing Center. Employers who have already recruited for the position in a labor market are cautioned that a move to a new work location may require a new labor market test.

Please note that changes, additions, or deletions to the application must be initialed and dated by the employer on Part A and by the beneficiary on Part B. It is unacceptable for the attorney representing the employer and/or beneficiary to make amendments to the Form ETA 750.

The employer has changed names. Do we have to submit a new application or may we change the original application? How should this be done?
The employer must submit a copy of the employer's articles of incorporation, business license, state registration, or other official documents that establish the employer as a bona fide business entity. In addition, a new ETA 750 Part A and Part B must be provided to continue the permanent foreign labor certification process. If the Form ETA 750 Part A and Part B have been returned for correction, the changes may be made on those existing documents.

Please note that the new employer or entity must be connected to the old one (a successor-in-interest) and cannot be an entirely new employer.

Our office recently received a request for "corporate documents" from the BPC. The petition was for a housekeeper. Is this request sent in error or how do we respond?
If the application is for a domestic servant in a private household, the employer should provide a recent tax return and/or leases, utility bills, etc. that establish the domestic employer at the address on the application.

Are all cases filed between 1/1/05 and 3/28/05 to be processed by the BPC rather than the Atlanta or Chicago Processing Centers?
All cases filed between 1/1/05 and postmarked before 3/28/05 will be processed by the Backlog Processing Centers.

Many clients are anxious because we have not received the 45-day letters from the Backlog Processing Centers in connection with their application. How can we follow up on status of cases and at what point should we worry about not getting a letter?
Due to the large volume of files transferred to the two Backlog Processing Centers, DOL cannot determine when your "45-day" Center Receipt Notification Letter (CRNL) will be mailed to you. As soon as your case is entered into the U.S. DOL Permanent Backlog System (PBLS), a "45-day" CRNL will be generated and sent to you and your attorney/agent of record, if one exists. Once you receive the "45-day" CRNL, all requested corrections, supporting documents, and the enclosed Selection of Continuation Option Letter must be returned to the appropriate Backlog Processing Center within 45 days.

How will RIR and TR priority be handled over PERM cases?
Backlogged cases will be processed in Philadelphia and Dallas. PERM cases will be processed in Chicago and Atlanta.

Will an RIR case that has been pending at the federal level for about 1 year be transferred to the Backlog Center, if there has been no decision or notice of finding issues?
Yes, all outstanding cases will be transferred to the Backlog Processing Centers.

Are all backlogged cases expected to be entered in the database by 3/28/05 so that employers can check status on-line?
DOL was not able to enter all cases into the database by 3/28/05. DOL is currently exploring steps that may be taken to accommodate inquiries regarding case status.

When will the BPC will begin adjudicating cases?
The Backlog Processing Centers have begun to process cases from the Regional Offices that have been completely entered into PBLS and for which the Backlog Processing Center has received a response to the Notification Receipt letter.
When will a public case information system be up and how will we access it?
DOL will be posting dates the Regional Offices and SWA shipped files to the BPCs on the home page of the Division of Foreign Labor Certification which is http://workforcesecurity.doleta.gov/foreign/contacts.asp.

Once the 45-day letter is received by a backlog center, approximately how soon will labor certification determinations be made?
DOL is unable to provide an exact timeframe for processing cases after the response to the 45-day letter is received. The processing of a case is dependent upon the timely and complete response of the applicant to all issues and to the FIFO status of a case.