DOL FAQs

H-1B no notification of termination, 60 days grace period, etc.,

Authored on: Tue, 08/18/2020 - 05:44

Question

My employer ended my employment due to COVID reasons on May 31, 2020 but I never received an official termination letter. Calculating the grace period depending on the assumed termination date mentioned above, I have till July 30 to find a new job. Should my new employer give me an offer or start the H1B transfer application before July 30? What happens if they fail to do so in time? Can I extend the grace period on the basis of having an offer in hand or maybe because of the pandemic? My final interviews with potential employers are being withdrawn because of the time restriction.

Answer

Watch the Video on this FAQ:

H-1B no notification of termination, 60 days grace period, etc.

Video Transcript

File a complaint against the employer with the Wage and Hour Division of the U.S. Department of Labor by filling up the form WH-4. You can also call them. 

The 60 day grace period works like this. The new employer must make sure that your H-1B transfer application is received by the USCIS within 60 days. So the LCA should be done, the package prepared and USCIS should receive your H-1B transfer within 60 days, otherwise you will be out of status and you will have to go outside the USA for visa stamping pandemic or no pandemic, also remember there is a proclamation that will stop you from coming back at least before December. Make sure you remain in status or at least file a B-2. FAQ in detail...

 

 

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

RFE and Audit

Authored on: Tue, 06/27/2017 - 04:10

Question

What is RFE and audit of GC?

Answer

Watch the Video on this FAQ: RFE and Audit of GC

Video Transcript:

An RFE simply means a Request For Evidence, which is typically a request by the USCIS to get more information from you. It can come in any petition. RFE typically gives you 87 days to respond sometimes it gives you lesser days to respond. RFE, when it is sent by the consulate, is called administrative proceedings where they will give you a notice. When it is sent by the US Department of Labor it is called an Audit. An audit from the US Department of Labor is the same thing as RFE from the USCIS. It merely requests for more evidence. It doesn't mean the case is denied, it just means it needs to be clarified. More...


Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Familial Relationships

Authored on: Tue, 08/26/2014 - 03:14

Question

When should an employer mark "yes" when responding to the Question C.9: "is there a familial relationship between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators?"

Answer

If there is a familial relationship between the owners, stockholders, partners, corporate officers, or incorporators, and the alien, the employer must be able to demonstrate the existence of a bona fide job opportunity, i.e., the job is available to U.S. workers. 20 C.F.R. 656.17(l). In order to provide the Certifying Officer (CO) the opportunity to evaluate whether the job opportunity has been and is clearly open to qualified U.S. workers, an employer must disclose any familial relationship(s) between the foreign worker and the owners, stockholders, partners, corporate officers, and incorporators by marking "yes" to Question C.9 on the ETA Form 9089. See also Matter of Modular Container, 1989-INA-228 (Jul. 16, 1991) (en banc).

A familial relationship includes any relationship established by blood, marriage, or adoption, even if distant. For example, cousins of all degrees, aunts, uncles, grandparents and grandchildren are included. It also includes relationships established through marriage, such as in-laws and step-families. The term "marriage" will be interpreted to include same-sex marriages that are valid in the jurisdiction where the marriage was celebrated.

A familial relationship between the alien and the employer does not establish the lack of a bona fide job opportunity per se. Ultimately, the question of whether a bona fide job opportunity exists in situations where the alien has a familial relationship with the employer depends on "whether a genuine determination of need for alien labor can be made by the employer corporation and whether a genuine opportunity exists for American workers to compete for the opening." Modular Container at *8. Therefore, the employer must disclose such relationships, and the CO must be able to determine that there has been no undue influence and control and that these job opportunities are available to U.S. workers. When the employer discloses a family relationship, and the application raises no additional denial issues, the employer will be given an opportunity to establish, to the CO's satisfaction, that the job opportunity is legitimate and, in the context of the application, does not pose a bar to certification. The CO will consider the employer's information and the totality of the circumstances supporting the application in making this determination.

Please note that failure to disclose familial relationships or ownership interests when responding to Question C.9 is a material misrepresentation and may therefore be grounds for denial, revocation or invalidation in accordance with the Department's regulations.

For more information please visit this link : http://www.foreignlaborcert.doleta.gov/faqsanswers.cfm

Foreign Labor Certification Questions and Answers

Authored on: Wed, 11/06/2013 - 07:50

Question

1. What is the Foreign Labor Certification Process?

2. How long will the employment-based visa process take?

3. Are there any employment-based immigration fees?

4. How do I find out the status of my permanent case?

Answer

1. The actual process for the Foreign Labor Certification varies depending upon the program being used. This http://www.foreignlaborcert.doleta.gov website contains information regarding the process for filing for each of the programs under the Department of Labor's (DOL) jurisdiction. The filing of applications is the responsibility of the employer, not the employee. However, the employee can benefit from understanding the program being utilized in his/her behalf. In general the Department of Labor works to ensure that the admission of foreign workers to work in the U.S. will not adversely affect the job opportunities, wages and working conditions of U.S. workers. Once a Foreign Labor Certification application has been approved by the DOL, the employer will need to seek the immigration authorization from USCIS.

2. Depending upon the nature of the program the process for filing could vary between months and years. To be of assistance, we have provided on our Web site the current processing times in the DOL regions and states. Currently, the process to obtain an employment based temporary labor certification (H-2A, H-2B) usually may take months through the state agency and the DOL regional office. However, H-1B processing usually only takes seven working days. The process to obtain an employment based permanent labor certification can sometimes take up to several months after completing the necessary recruitment steps and filing the application with the National Processing Center. The PERM Processing Times are updated monthly and available for view at http://icert.doleta.gov.

For the employment-based permanent visa, the USCIS may take up to an additional 9 months to process the request. USCIS will provide"premium processing" for some visa categories with an additional fee.

 

3. Most programs administered by the DOL do not charge fees for a foreign labor certification. Every program does, however, require fees be paid to the USCIS upon filing an application for a visa or greencard. See the individual program (H-2A) for details regarding DOL fees. See the USCIS site for details regarding USCIS fees.

 

4. An employer should pro-actively and regularly, advisably once a month or less, monitor the status of an electronically filed labor certification application via the Permanent Case Management System, and compare its filing date, i.e., the date the application was submitted for processing, to the PERM processing times posted on the iCERT Visa Portal System (http://icert.doleta.gov/). If there is more than a 30-day difference between the employer's filing date and the PERM processing time, the employer may contact the National Processing Center (NPC) for a status update.

An employer who filed a labor certification application via mail may contact the National Processing Center's Help Desk at 404-893-0101 for a status update.

Survey Methodology–Frequently Used Alternate Surveys

Authored on: Tue, 11/20/2012 - 00:47

Question

Rather than requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?

Answer

DOL indicates that methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.

Rejection of Alternate Wage Surveys that are Incomplete or Lack Information

Authored on: Tue, 11/20/2012 - 00:44

Question

Applicants have reported frequent rejections of alternate wage surveys that have been submitted to the prevailing wage unit in support of the ETA 9141. Several of these rejections have not been due to a specific deficiency of the survey or because the survey was not a match to the position, but because not all leveling information was submitted, or because the submitted survey data was incomplete. Rather than rejecting the survey due to missing survey information, could the National Prevailing Wage Center (NPWC) instead issue a request for the missing information, so that employers are able to correct the problem, rather than have to submit a new wage request and wait two months for a decision?

Answer

DOL indicates that it does issue a Request for Information when possible, but relies on employers and attorneys to provide complete information regarding alternate wage surveys to allow the wage determination to be based upon that survey. DOL does not have the resources to issue a Request for Information on every incomplete request, particularly those where major components of the alternate wage survey are not provided.

Audits about Telecommuting

Authored on: Tue, 11/20/2012 - 00:41

Question

Recently, DOL has begun to issue audits with the following language: “The foreign worker listed on the ETA 9089 resides in [residence location], section H of the 9089 provides [work location] as the worksite. Has DOL explained how the foreign worker performs the job duties of the job opportunity given the distance between [residence location] and [work location].Is the employee permitted and/or expected to perform the duties of the job opportunity listed on ETA 9089 from his residence and/or his place of choosing?” In many cases, the two locations are quite close and are clearly within a normal commuting distance (e.g. Atlanta and Marietta,
Georgia – distance approximately 20 miles; Palisades Park and Parsippany, New Jersey – distance approximately 30 miles). In one case, the work and residence locations were less than two miles apart. Has DOL considered conducting an initial review of the distance between the residence location and work location before issuing the audit?

Answer

DOL indicates that this kind of question on an audit where the work location and residence location are close together is likely a training issue. DOL does, however, believe that it is appropriate to inquire about this kind of issue where it is unclear why the residential address and the work address are far apart from one another, and does issue audits on that basis where appropriate.

Follow up on PERM Account Registration

Authored on: Tue, 11/20/2012 - 00:34

Question

Applicants often have difficulty getting a response from the various email help desks (sr.processing@dol.gov, plc.atlanta@dol.gov, etc.) beyond a boilerplate acknowledgement of the inquiry. This lack of substantive response can be particularly challenging when an employer is trying to create a new PERM filing account, or if the employer’s contact is locked out of their online PERM account. Has DOL provided any details on how e-mail inquiries are handled by each of the help desks? Does DOL have required service response times? Would it be possible for a dedicated e-mail to be created to follow-up on specific matters, such as PERM account registration problems? As an example, USCIS has a dedicated follow-up e-mail for service requests, but this e-mail can only be used after a service request is made, and after a set period of time goes by without a response.

Answer

DOL indicates that it has completed its project to address “straggler” cases and has returned staff to normal job duties. This may help to improve timeliness of responses from DOL on these kinds of issues.

Duplicate PERM Certifications

Authored on: Mon, 11/19/2012 - 10:19

Question

Several people have reported receiving two certifications of the same PERM application, with different validity dates. In most (but not all) of these cases, when the case was first approved, no hard copy ETA 9089 was received by the attorney in the mail. When the case was “recertified,” a hard copy 9089 was generated. Has DOL identified what caused these duplicate approvals? Has DOL also communicated this problem to USCIS, as this could impact processing of an I-140 petition that was filed with a request that USCIS contact DOL to obtain a “duplicate” certification?

Answer

DOL indicates that there has been at least one case where the I-140 was approved by USCIS despite issuance of a “duplicate” certification with different dates. In that case, the DOL and USCIS were advised of the duplicate certification issue prior to the I-140 being approved.

Bona Fide Reasons for Withdrawal during Supervised Recruitment (SR)

Authored on: Mon, 11/19/2012 - 10:17

Question

Employers may choose to withdraw cases undergoing SR for many reasons, such as the employee terminating his employment, the employee obtaining a green card through other means (such as marriage), or the costs of the required recruitment. In determining any employer-wide consequences of withdrawal during the SR process, does DOL consider the explanation as to why the SR case is being withdrawn? How can an employer best provide an explanation why the SR case is being withdrawn?

Answer

DOL indicates that it does not monitor or track particular reasons for withdrawal. DOL does, however, pay attention to the rate of withdrawal both for individual employers and overall. The withdrawal rate has decreased, but at one point was more than 10%. Such a high rate of withdrawal caused DOL concern. DOL does recognize, however, that there are legitimate reasons why an application might be withdrawn, and will review existing guidance and make changes if appropriate.

Consolidation of Identical Cases for Supervised Recruitment

Authored on: Fri, 11/16/2012 - 07:10

Question

DOL has indicated that it would make sense to consolidate recruitment for Supervised Recruitment (SR) cases that are identical. Has DOL made any progress on publishing a standard that can be followed to consolidate recruitment for SR?

Answer

DOL has indicated that it is generally not opposed to consolidation of recruitment efforts in appropriate cases, and a request can be made to the SR processing e-mail box for consolidation. Even where cases are consolidated for recruitment, however, DOL will still require individual recruitment reports for each SR application.

Processing Times or Delays in Supervised Recruitment (SR)

Authored on: Fri, 11/16/2012 - 07:04

Question

The processing of supervised recruitment cases is still extremely slow. Cases filed directly into supervised recruitment in January and February 2012 have still not received the initial communication from DOL or any recruitment instructions. Based on reports, it appears that DOL is not following FIFO (first in, first out)on SR cases, as there are SR cases with priority dates ranging from May 2011 to October 2011, and draft ads/ad corrections have been submitted as early as February 2012 and as late as July 2012. Has DOL provided details on SR processing dates and times?

Answer

DOL indicates that it expects to see a significant increase in the speed of processing of SR cases as well as cases under audit. Staff members who normally work on SR cases were temporarily reassigned to identify and process “straggler” cases. That project has been completed as of October 1, 2012, and DOL has moved those staff members back to their normal work. This should result in much faster processing of both SR and audit cases.

Prevailing Wage

Authored on: Tue, 11/13/2012 - 06:11

Question

Rather than requiring that the full survey methodology be submitted with every prevailing wage request, can DOL recognize that certain surveys (i.e., Towers Watson, Radford, CHIPS One) employ a statistically valid methodology, and only require documentation that supports the specific wage request, such as the wage, level, location, and job description for the requested job opportunity?

Answer

Methodology can change within a survey among different occupations, so it is necessary for DOL to receive full survey methodology with each prevailing wage request, even for a commonly used alternate wage survey.