For any employer familiar with the H-2B temporary visa program for employees – or for any employer interested in it, a major starting point to consider are the extremely strict and unforgiving timelines of the Labor Certification process. The H-2B program encompasses temporary labor needs that fall into one of the following categories: seasonal, peak load, intermittent or a one-time occurrence.
A major concern of employers is what is known as the Prevailing Wage. The wage for any position, in which an H-2B employee is sought, is set by the National Processing Center. Because the Immigration and Nationality Act requires that a foreign worker’s wages will not adversely affect the wages and conditions of other U.S. workers employed in the position, setting a “Prevailing Wage” for said occupation is vested in the Department of Labor, specifically, the Office of Foreign Labor Certification, National Processing Center.
Step one in the H-2B process is therefore filing a Request for a Prevailing Wage on Form ETA 9141. The request includes the employer information, job title, job duties and any employment or educational requirements for the position. Under 20 C.F.R. §655.10(b)(6), the National Processing Center is to make a determination within 30 days. Upon receipt of the set wage, employer may begin advertising for the position and then, must file the application for certification for a certain number of foreign workers at least 60 days before the start date of need.
This year, many employers faced serious delays with their prevailing wage requests. Employers cannot start their season or even begin to process their foreign labor certifications or visas without the Prevailing Wage Determination. For employers in any business surrounding a seasonal need, such as crawfish trap making for crawfish season and alligator, shrimp, crab or other seafood processing, the seasons wait for no one. What were employers to do? The delays were caused by the onset and then delays of a new wage rule (Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Final Rule, 76 Fed. Reg. 45667 [Aug. 1, 2011]; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Notice of Proposed Rulemaking, 76 Fed. Reg. 37686 [June 28, 2011]; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Final Rule, 76 Fed. Reg. 3452 [Jan. 19, 2011]; Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program, Notice of Proposed Rulemaking 75 Fed. Reg. 61578 [Oct. 5, 2010]). The implementation of the these new regulations was followed by many separate lawsuits by employers and associations against the Department of Labor.
In a nutshell, the “New Wage Rule,” as it is casually called, would create an average wage for H-2B job positions, as opposed to the previous system, where each occupation was broken into levels depending on experience and other factors. In reality, and the basis of many lawsuits, the New Wage Rule would set H-2B wages in the $12.oo -$15.oo per hour category for unskilled positions that previously held a $7.oo to $9.oo wage. The new wage would be required to be paid to all H-2B employees and any U.S. worker recruited into that occupation. The Department of Labor, by its own admissions, was extremely backlogged in the fall of 2011, as it had to re-issue new, higher wages to thousands of employers under the new wage system.
Understandably, the Department of Labor was delayed in issuing prevailing wages. But, for an employer who requested a prevailing wage in July, and had not received his wage by the end of September, how long can an employer wait? Employers who are experiencing extended delays waiting on their Prevailing Wage Determinations to be issued can seek some solace in Matter of GULF COAST CRAWFISHING SUPPLY, LLC, 2012-TLN-00003, Dec. 1, 2011.
Due to the extreme delays with Prevailing Wage Determinations, employer’s Labor Certification was ultimately certified, even though employer had to begin advertising for the position before the actual Prevailing Wage Determination was issued. Employer simply could not wait indefinitely for a determination to be issued, as the crawfish season was imminent. Employer made every attempt to comply with the regulations, including alerting U.S. applicants of the fact that the wage rate was likely to change upon receipt of the prevailing wage and under the new wage rules. Ultimately, BALCA recognized that when the Department of Labor failed to follow the 30-day guideline for issuing wage determinations, employer was left with no option but to continue with the labor certification process as best it could, given the circumstances and the extreme delays in getting the actual required wage for the position.
(See:http://www.oalj.dol.gov/Decisions/ALJ/TLN/2012/EMPLOYMENT_and_TRAIN_v_GULF_COAST_CRAWFISHI_2012TLN00003_%28DEC_01_2011%29_094633_CADEC_SD.PDF. "[I]t is clear that the Employer in this case made every effort to comply with Section 655.10(a)(2), but was simply unable to comply with the regulation and file its application in time for its season as a result of the NPWC’s delay in issuing the PWD. ... Employer’s noncompliance with Section 655.10(a)(2) was justifiable and excusable. ... Accordingly, the CO’s denial of certification is vacated and remanded for further processing.")
If you are the widow(er) of a U.S. citizen, a recent change in the law may affect your ability to immigrate. Section 568(c) of Public Law 111-83 amended the Immigration and Nationality Act so that you may be eligible to immigrate, even if you and your deceased spouse were married for less than 2 years when your spouse died. This change took effect on October 28, 2009, when the President signed the new law. As a result, you may now file Form I-360 for Special immigrant classification as a widow/widower, even if you were married less than 2 years when your spouse died.
You must still file your Form I-360 no later than 2 years after the citizen’s death. If your spouse died before October 28, 2009, however, and you were married for less than 2 years, you can file a Form I-360 for Special Immigrant Classification as a widow/widower, so long as you do so no later than October 28, 2011.
Your eligibility to immigrate as the widow(er) of a U.S. citizen ends if you remarry before you immigrate.
It's H2B Season folks - which normally means that for fall start dates, much work must be done in late summer, which is when I filed a few Prevailing Wage Requests for fall start dates. But then the new H2B Wage Rules were ordered to go into effect on October 1, 2011, so the Department of Labor lacked the man power to deal with my little prevailing wage requests. And then the H2B Rules were ordered not to go into effect until December 1, 2011. And so the Department of Labor dried up the rest of its own labor force sending out letter after letter after thousands of letters to H2B Employers informing them of all this news. So, after waiting turned into more waiting, which turned into twiddling my thumbs which turned into email-badgering the National Prevailing Wage Center, which turned into automated email responses, which turned into to extremely stressed out H2B employer clients whose start dates are literally right around the corner, which turned into more emails to the NPWC which turned into a very, clouded response from the NPWC via email, which read as follows: (I've underlined for emphasis on the main point of the email which is that the entire H2B system for the upcoming year, for all new certifications, has essentially been shut down).
"The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.
The underlying issues is that, well, the seasons don't wait. Crawfish, crab, alligator, shrimp seasons can't wait on the understaffed Department of Labor to pick back up the H2B Process. Where does that leave us?
USCIS will start issuing a single card for certain applicants with pending I-485 Adjustment of Status applications, which will serve as BOTH the work authorization card and the Advance Parole. If an I-485 is pending, and an applicant files for both employment authorization and advance parole, USCIS will issue the card -- a more durable (and convenient for travel purposes) option than the old paper Advance Parole sheet.
U.S. Citizenship and Immigration Services announced yesterday a final rule adjusting fees for a variety of immigration applications and petitions. This rule goes into effect on November 23, 2010. If you have an I-130 prepped and ready for filing, for example, if it is received by USCIS by November 22nd, the fee is still $355, but if they receive it the next day, on November 23rd, the fee will have increased to $420. As explained on the USCIS website, this comes after a comprehensive fee review that began in 2009. The information and list of new filing fees can be found here:
The Executive Office of Immigration Review has decided to stick with allowing callers to call their informational system number using only the A# of the person for whom the information is sought. Meaning, when you dial 1-800-898-7180, you WILL need your detained friend or relative's Alien Number (Normally 8-9 digits, beginning with A and found on most documents he/she would have received from immigration officials), but you won't need any other information to find out when their next court date is. Whew!
Below is the official info into the new case information system that EOIR is implementing nation-wide. If you need information on your court date, a friend or family member's court date before an Immigration Judge, you used to be able to scrounge up the Alien Number (9-digit number starting with A) in order to call the 1-800 number below and figure out when that person's next court date was. Gone are those days! Now, you'll need the A# as well as the date of the original "charging document," most commonly known as the Notice to Appear or NTA.
Here's the official info. If you have questions or want to give your opinion into the new system, see below. I got the below information from a response to an email inquiry as to what the new system entails.
EOIR has decided to implement a two-phase schedule for the case information system launch that the agency announced on August 16, 2010. Phase one will begin on August 30, but the only change that users will notice is the change of local phone number. The toll-free number (800-898-7180) will remain the same. Phase two will occur on October 4 and it is at this time that users will be required to enter both the currently required alien registration number and the charging document date. EOIR encourages you to reference the “How to Find Charging Document Dates” document on its website at www.justice.gov/eoir/HowToFindChargingDocumentDates.htm. If you have any questions, please contact the EOIR Office of Legislative and Public Affairs at 703-305-0289 or PAO.EOIR@usdoj.gov.
If you know someone who has been detained by ICE, there is finally an online, user-friendly way to locate your friends and family members. https://locator.ice.gov/odls/homePage.do This is Immigration and Custom Enforcement’s new website geared at helping you locate detainees. This is definitely where you should begin your search for someone detained for immigration purposes.
“Per Louisiana Rule of Professional Conduct 7.4, our description of our fields of practice does not state or imply certification, specialization or expertise in any particular areas of law, This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.”
