By Brandon Meyer, Associate

I attended the U.S. Department of Labor’s (“DOL”) public forum on upcoming changes in both the PERM Labor Certification and Labor Condition Application (“LCA”) programs held in San Diego, California on February 4, 2009.  Bill Carlson, Administrator of the Office of Foreign Labor Certification, represented DOL.  In attendance were interested members of the American Immigration Lawyers Association (“AILA”) and representatives of private sector employers.  This memorandum serves to provide you with a summary of the presentation.  Any errors or omissions are the sole responsibility of the author.

The purpose of the DOL Forum was to announce upcoming changes in both the PERM and LCA programs.  Through the creation of the so-called “iCERT System,” the long-term goal of DOL is to create a single portal for employers and/or their legal representatives to manage the creation of LCA, PERM, H-2A, and H-2B applications.  Employers and/or their legal counsel will be able to create sub-accounts for one standardized company account that will attempt to streamline data collection between the LCA and PERM forms, unlike the current system in which the LCA and PERM application accounts exist in parallel without any intersection. 

Keep in mind that a fully integrated system will allow for greater DOL monitoring and oversight of a company’s LCA and PERM programs, which makes the issue of risk management and program oversight even more critical.  Although the timetable for the initiation of an integrated iCERT system described above is uncertain, DOL outlined the incremental steps that will occur on the road to this centralized system.

The formal announcement of the iCERT system will be published in the Federal Register sometime in March 2009.  The announcement will contain a URL for users to create a corporate accounts and representative sub-accounts.  The iCERT system will become operational on April 15, 2009 with the introduction of a new ETA-9035 LCA form.  While users begin to familiarize themselves with the new LCA form and the iCERT system, the current LCA form and system will remain operational in parallel until May 14, 2009.  On May 15, 2009, the old LCA system will be disabled except to allow for status checks and withdrawals of LCA’s created under the old system.

The new LCA form does not contain many material changes, merely a representation of the information that is currently collected.  The main changes are in boxes B2 and B3, which continue DOL’s movement away from the old Dictionary of Occupational Titles (“DOT”) codes exclusively toward usage of the Standard Occupational Classifications (“SOC”).  The new LCA form instructions provide a mapping between the DOT and SOC codes.  Another noteworthy change is in box B7, which allows a company to obtain an LCA for multiple beneficiaries, with a breakdown of how many beneficiaries fall into the categories of: 1) new employment; 2) extensions: 3) change in employer; 4) amended petitions, among others, that are intended to mimic data collection on USCIS Form I-129.

The most significant change in the new LCA system will be that the instantaneous certification that has been a feature of the online LCA system will be gone forever, making planning issues between companies and their legal representatives even more critical when concerning time sensitive cases.  Once the new LCA form becomes operational on April 15, 2009, DOL states that users can expect LCA certification sometime between a few minutes and up to seven days.  DOL officials strongly implied that a DOL program officer before certification will review every LCA and further implied that systemic abuse of the current instant certification model has resulted in this new less user-friendly system.  Once an LCA has been certified, the designated contact will receive an e-mail directing them to retrieve the certified LCA from the iCERT system.

On July 1, 2009, iCERT will be extended to new PERM filings, although the existing online PERM system will continue operating in parallel until August 1, 2009.  A new version of the ETA-9089 Form will also be introduced when the iCERT system becomes operational within the PERM context.  The new 9089 attempts to address many of the flaws that emerged with the current 9089 forms.  DOL has attempted to design a form that allows an employer to better clarify and explain itself whenever alternative requirements are acceptable for a position. 

While some of the assembled audience did highlight potential flaws that might emerge with the new PERM form in practice, DOL has made a serious attempt to rectify some of the confusion with the present 9089 forms and deserves praise for doing so.  Most significantly, DOL has attempted to address the contentious issue of when employers will accept “any suitable combination of education, experience, or training,” the so-called “Kellogg language” issue that has been a fertile source of confusion and complaints.  The new 9089 form has a new category for “suitable combination” requirements, in which the employer or designated representative specifically states in box g.25.b whether or not the employer accepts “any suitable combination”.  Employers and their representatives should be happy with this change.

Another potential issue not highlighted by any of the participants can be found in Section K. Declaration of Foreign Worker.  Labor certification beneficiaries are asked to declare, “under penalty of perjury that I intend to accept the position offered in Section H of this application if a labor certification is approved and I am granted a visa or adjustment of status based on this application.”  It remains to be seen whether this declaration will have any long-term conflicts with existing AC-21 provisions for adjustment of status portability.

DOL did not address the issue of whether audits will increase or whether the criteria for undertaking an audit will change.

I hope this memorandum is useful and informative.  Should you have any questions or require the assistance or second opinion of an attorney at this time, please contact Immigration Compliance Group.

Read more about the iCert portal here

 
iCERT System Implementation Timelines
For your Reference - 2009 Timeline for Implementation

LCA Form 9035

Apr 15 OFLC begins receiving new LCA form
for processing through iCERT System
May 14 OFLC continues receiving existing LCA
form through LCA OnLine System
May 15 OFLC disables filing of existing LCA
form, but keeps LCA OnLine System up
for case status checks/withdrawals

PERM Form 9089

Jul 1 OFLC begins receiving new PERM form
for processing through iCERT System
Jul 31 OFLC continues receiving existing PERM
form through PERM OnLine System
Aug 1 OFLC disables filing of existing PERM
form, but keeps PERM System up for case
status checks/withdrawals

2. Healthcare News

NCLEX Statistics for 2008

Because passing the NCLEX is usually the final step in the nurse licensure process, the number of people passing the NCLEX (“pass rate”) is a good indicator of how many new nurses are entering the profession in the U.S.

This link provides the most recent data on testing volume and pass rates. 

Pending Nurse Legislation

The W Visa for Nurses - Nursing Relief Act of 2009, HR 1001 introduced in the House on 2/11/09

The purpose of this Act is to create a new nonimmigrant, temporary visa category for registered nurses - the W Visa, that will work in a very similar way as the H-1B visa.

The bill is a good one for nurses, healthcare providers and, of course, for patients. Whether or not it survives and garners the recognition that it urgently requires at this time in our nation and makes it though the arduous process in the House and Senate and passes - well, we don’t have a crystal ball on this one.  We are, however, extremely pleased to see the issue brought before the House once again this year and salute all the sponsors -and are hopeful that it passes.

The Findings and Purpose of the Bill:

1. There are more vacant nursing positions in the United States than there are qualified registered nurses and nursing school candidates to fill those positions.
2. According to the Department of Labor, the current national nursing shortage exceeds 126,000.
3. States in the West and Southwest have a disproportionate number of nursing vacancies because of rapid population growth, which exacerbates a widening gap in the number of facilities and staff compared to patients that need care.
4. Foreign countries such as the Philippines, India, and China have an oversupply of nurses.
5. Major hospital systems in the United States spend hundreds of millions of dollars every year recruiting foreign nurses under our current immigration system.
6. Current law, with certain limited exceptions, requires health care providers to sponsor desired nurses for permanent resident status while the nurses remain outside of the United States, which can take as much as 3 years or more.
7. This cost is passed on to consumers and adds to the rising cost of health care.
8. Health care providers cannot efficiently and effectively recruit qualified foreign nurses through the existing immigration process.
9. Our health care system requires an immediate modification of Federal laws relating to recruitment of qualified foreign nurses in order to operate at an efficient and effective level.

Read more about the bill here. 

Read the White House Immigration Agenda here.


S. 497 introduced 2/26/2009 was introduced in the Senate by Dick Durbin (D-IL) backed by the American Organization of Nurse Executives and other nursing groups that would provide grants to nursing schools for faculty and other resources to increase enrollment. According to the American Association of Colleges of Nursing, nursing schools last year turned away nearly 50,000 qualified applicants due to a shortage of faculty (62.5%), insufficient clinical teaching sites (53.8%), limited classroom space (42.3%), insufficient preceptors (25.4%) and budget cuts (14.8%). We salute Senator Durbin for introducing this legislation.  Although we feel strong that training US RNs is an essential part of easing the nursing shortage, we also know that the four-year wait for U.S. hospitals to sponsor foreign-born RNs for their green-cards is making our nursing shortage even worse.

S. 54 -The Registered Nurse Safe Staffing Act of 2009:  S. 54 would amend title XVIII of the Social Security Act to provide for patient protection by establishing minimum nurse staffing ratios at certain Medicare providers.

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3. News for IT Professionals

---Employers who received the most H-1B approvals in 2008

---Computerworld:  As US IT Jobs are Cut, H-1B usage by offshore vendors is rising

---Comptuerworld:  Indian Outsourcers and Microsoft Tops the List of  H-1B Users in 2008

---InformationWeek:  Stimulus Package Makes it Harder to Hire H-1B Workers for Financial Services and Banks

The stimulus law contains a watered down version of the original H-1B measure first proposed by Senators Bernard Sanders (I-VT) and Charles Grassley (R-IN). Originally, the measure would have prevented banks which receive TARP bailout funds from the federal government from hiring or extending the status of H-1B temporary professional workers for the next two years.

The current version makes banks and financial institutions similar to "H-1B dependent" employers; meaning, that banks hiring H-1B workers will have to attest that they first tried to recruit U.S. workers for the job and that an H-1B worker is not displacing a U.S. worker. However, the measure is more strict than the usual "H-1B dependent" employer provision in that there is no exemption for H-1B workers making over $60,000 per year or possessing advanced degrees. 

Read this story from Information Week.

4. News Bytes - Workplace Compliance

2/27/09: ICE raided the Yamato Engine Specialists plant in Bellingham, WA.  The agents arrested 28 people, 25 men and 3 women, for allegedly using fake Social Security documents to gain employment.  It was the first worksite raid since President Obama took office.  ICE claims the raid was the result of an ongoing investigation into the worksite, apparently after two ‘gang members’ led agents to begin the investigation.  The next day, Homeland Security Secretary Janet Napolitano appeared at a hearing before the House Homeland Security Committee and stated she had been unaware of the raid before it happened and ordered a review of the action.  Last month Napolitano issued a directive ordering an internal review of multiple immigration enforcement initiatives within DHS. 

For more information on this story:
Read this story from the Seattle Times

Final Defendant Sentenced in ICE Worksite Probe Targeting Northern California Restaurants, Sacramento

The former owner of an Asian buffet restaurant in Vacaville, Calif., has been sentenced to eight months of home confinement and three years probation on charges stemming from an investigation by U.S. Immigration and Customs Enforcement (ICE) into allegations he hired illegal aliens to work at the business.

A federal judge sentenced Rui Tao Lin, 53, the former owner of the King's Buffet in Vacaville, Calif., on Friday. In addition to home confinement and probation, the judge also ordered Lin to pay $49,000 in criminal fines. In November, Lin pleaded guilty to employing illegal aliens and mail fraud.

For more information on this story:
Read this story from ice.gov 

Safe-Harbor Procedures for Employers who Receive No-Match Letters, Final Rule

The final rule amends the regulations relating to the unlawful hiring or continued employment of unauthorized aliens.  The final rule outlines very clear steps an employer may take in response to receiving a no-match letter from the Social Security Administration indicating that an employee’s name does not match the social security number on file.  Given that an employer follows the guidance in the No-Match Rule and implements various procedures to rectify the no-match within 90 days, they will have a Safe Harbor from the No-Match letter being used against them in an enforcement action.

Note to Employers:  One of the most cost-effective and convenient ways to make sure your workplace compliance programs are in order, is to schedule a convenient audio conference with Immigration Compliance Group. You can participate right from your office and take on no travel costs at all. You can even have as many co-workers as you chose participate in the event. The conference is live - we can tailor it to your concerns and preferences, and provide you with a forum to get the RIGHT answers to your questions.

Weekly Round-up of Immigration Legislation

USCIS Announces Modest Expansion of I-140 Premium Processing:  The Service will be expanding the premium processing program for I-140 petitions to include cases filed on behalf of foreign nationals who have already reached their statutory 6-year H-1B limit and who require an approved I-140 in order to obtain H-1B status beyond the 6th year.  Currently, I-140 premium service has been available only to those who were in the last 60 days of their 6th year in H-1B status.

For more information on this story:
Read this from USCIS.gov
 

New Forms Required for H-2A and H-2B Programs:  In conjunction with regulations that went into effect in January 2009 for the H-2A and H-2B programs, the Department of Labor has created new forms to collect the necessary information form employers applying for labor certifications.  Both programs must begin using Form ETA-9142.  For the H-2A program, employers must also fill out and submit Appendix A1 and Appendix A2.  Employers must fill out and submit for the H-2B program Appendix B1. 

Under current regulations, only nationals of the countries mentioned below (or those that have made special arrangements with DHS) may apply for and be approved for H-2B status, as follows: Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine and the United Kingdom.

Please note that the above list will not affect the immigration status of any non-immigrant’s currently in the U.S. under H-2B status. Read this for instructions on how to complete these forms and appendices.

H-2A Final Rule

H-2B Final Rule


On 2/25/09, the House of Representatives passed the Fiscal 2009 Omnibus Appropriations Bill (H.R. 1105), totaling $410 billion.

The Omnibus appropriations measure includes provisions that would extend two immigration related programs -- the EB-5 regional center program and Basic Pilot (E-Verify) program-- through September 30, 2009.

While the Religious Worker and Conrad 30 extensions were not included in the Omnibus measure, Rep. Lofgren (D-CA) introduced a bill (H.R. 1127) last night which would reauthorize both programs through September 30, 2009.

The measure now heads to the Senate for consideration.