A QUARTERLY UPDATE ON IMMIGRATION LAW FROM MEYNER AND LANDIS LLP
First Quarter 2005

In this Issue:

• PERM Has Arrived!
• USCIS Announces Backlog Elimination Update
• Latest on the H-1B Saga

PERM Has Arrived!

The long-awaited PERM regulations take effect March 28, 2005. An Alien Labor Certification Application (the first step to the Green card for most employment-based cases) is now filed through an expedited (and hopefully) improved method.

PERM (effective March 28, 2005) allows employers to submit an Application for Permanent Employment Certification directly with DOL, online or by mail, and receive an approval within 45 to 60 days if there is no DOL audit.

As was the case with RIR, testing the U.S. Labor Market in the area of intended employment is required PRIOR to filing of the application.

While supporting documentation (e.g., evidence of recruitment, business necessity for special requirements) will not be submitted with application, such documentation must be maintained for five (5) years and supplied if requested by the Certifying Officer.

DOL will conduct audits of certain PERM applications according to internal criteria designed to identify questionable applications, as well as at random.

Under PERM, the employer must obtain a prevailing wage determination from the State Workforce Agency (SWA). Employers will be required to pay 100%, rather than 95% of the prevailing wage. In addition, DOL will offer a four-level wage system in place of the current two-level system.

USCIS ANNOUNCES BACKLOG ELIMINATION UPDATE

USCIS has announced that the backlog has continued to decline for the processing of immigration benefits such as work authorization, permanent residency and naturalization. In the latest update issued to Congress, USCIS reported the backlog, which had reached a high of 3.8 million cases in January 2004, was reduced to 1.5 million cases as of September 30, 2004. In all, USCIS has reduced the backlog by more than 2.3 million cases during fiscal year 2004.

Highlighting the latest report to Congress was the record number of case completions. In all, USCIS officers completed almost 2.2 million cases during the fourth quarter while receiving nearly 1.3 million new cases. By completing 900,000 more cases that received, USCIS accomplished the most productive quarter in the Agency’s history.

The report credits much of the backlog elimination progress to productivity increases and process refinements. USCIS has prioritized its pending workload to ensure that applications filed by eligible applicants for whom benefits are immediately available are handled first. This concept is highlighted by the current USCIS practice of deciding Petitions for Immigration Relatives (I-130s) closer to the date on which a visa will become available.

The report also noted a reduction in cycle times for a number of services and benefits. For example, the cycle time for the Replacement of a Green Card (I-90) is now 5.4 months. At the beginning of fiscal year 2004, the cycle time for this same service was 12.7 months.

PRE-FILING RECRUITMENT:

Posted Notice

The employer must post notice of the job opportunity for at least ten (10) consecutive business days. The notice period must be between 180 and 30 days before filing. The notice must contain the salary, but may contain a wage range, so long as the lower level of the range meets or exceeds the prevailing wage. The primary purpose of the posted notice is to give employees an opportunity to comment on the application and that the posted notice is not another way to recruit US workers.

Use of Other In-House Media

In addition to printed posted notice, the employer must use any and all in-house media, whether electronic or printed, in accordance with normal procedures used for recruitment for similar positions in the organization.

Job Order

The employer must place a job order with the SWA for a period of 30 days. Form ETA 9089 requires the employer to list the start and end date of the job order. These dates serve as documentation of the job order.

Advertisements

The employer must place two advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment. Both ads must be placed more than 30, but not more than 180 days before filing. The ad must list the name of the employer, the geographic area of employment (only if the job site is unclear, e.g., if applicants respond to a location other than the job site or if the employer has multiple job sites), and a description of the vacancy specific enough to apprise US workers of the job opportunity. The employer may include minimum education and experience requirements or specific job duties in the ad as long as those requirements also appear on Form 9089. The ad must direct applicants to send resumes or report to the employer, as appropriate. The employer’s physical address is not required. A central office or post office box may be designated for receipt of resumes. The ad need not include the salary or a detailed listing of the job description and requirements. However, if the ad does include the salary, the salary stated must meet or exceed the prevailing wage. If the job requires experience and an advanced degree, the employer may use a professional journal in lieu of one of the Sunday ads.

Three Additional Recruitment Steps for Professional Jobs

The list of permitted additional recruitment steps in the final PERM regulation include: 1) job fairs; (2) employer’s web site; (3)job search web site other than employer’s; (4) on-campus recruiting; (5) trade or professional organizations; or (6) private employment firms. (7) an employee referral program, if it includes identifiable incentives; (8) a notice of the job opening at a campus placement office, if the job requires a degree but no experience; (9) local and ethnic newspapers, to the extent they are appropriate for the job opportunity; and (10) radio and television advertisements. Further, a web page generated in conjunction with a print ad now counts as a website other than the employer’s. The additional recruitment steps must take place no more than 180 days before filing. The employer is not required to take different steps each month. Only one of the additional recruitment steps may take place within 30 days of filing. Alternative recruitment steps only require employers to advertise for the occupation involved in the application rather than for the job opportunity as is required for the newspaper ads.

RE-FILING UNDER PERM OF AN EXISTING CASE

An employer may file a PERM application where there is an existing labor certification application and the PERM application will keep the filing date of the original application, IF the labor certification is for the “identical” position, the employer specifically requests the re-filing benefit, and there has not yet been a state job order entered on the original labor certification.

A request for re-filing benefits is an automatic withdrawal of the “old” labor certification.

A PERM application which does not request re-filing benefits does not result in the withdrawal of the old application - even if the positions are identical.

Latest on the H-1B Saga

A USCIS official advises that it does not yet know when the announcement about acceptance of H-1B petitions for fiscal 2005 will be published. The announcement, which will be in the form of a rulemaking in the Federal Register, is currently awaiting OMB clearance.

The official was not able to say whether USCIS will hold to the March 8, 2005, press release that indicated that the fiscal 2005 numbers would be open to all eligible H-1Bs, or if the agency will go back to declaring that only individuals holding a master's or higher from a U.S. university will be eligible for the numbers.

In the meantime, USCIS will start accepting H-1B filings for fiscal 2006 on Friday, April 1, 2005. (There had been a rumor that USCIS would delay acceptance of these applications, but that rumor is not true.)

The question that arises is what to do with those who would wish to take advantage of a fiscal 2005 number if possible, but also wish to file as soon as possible for a fiscal 2006 number. USCIS was unable to address this, other than to say that "no one will be advantaged or disadvantaged for a fiscal 2005 number because they filed for a 2006 number". It was indicated that the Federal Register notice would address this situation, but USCIS is unable to disclose the content until it is cleared by OMB. USCIS is aware of the concern about the expense and other issues involved if one would have to double-file for fiscal 2006 and 2005 numbers.

Portions of this newsletter have been reprinted with permission from AILA
Copyright © 2005, American Immigration Lawyers Association

The material contained in this newsletter is for informational purposes and should not be considered legal advice.

For further information, please contact Anthony F. Siliato, Esq.
Meyner and Landis LLP, One Gateway Center, Suite 2500, Newark, NJ 07102
(973) 624-2800 • asiliato@meyner.com
Website: www.meyner.com