Wednesday, October 26, 2016

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DEC 23, 2016

Earlier this year in May the USCIS published a proposed rule to increase fees.  On October 24, 2016, the final rule was published adjusting the fees for most immigration applications and petitions.  The new fees will go into effect on December 23, 2016.
 
The new fees are:

Form
Current Fee
New Fee
Change
I-129
$325
$460
$135
I-130
$420
$535
$115
I-140
$580
$700
$120
I-485
$1,070
$1,225
$155
I-539
$290
$370
$80
I-765
$385
$410
$25

A full list of all of the new fees can be found on the USCIS website.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The fee increase is the first in the last six years and.  The fees will go up an average of 21 percent and will recover the costs associated with fraud detection and prevention and national security.


Wednesday, May 4, 2016

MU VISA ADVISOR: USCIS ISSUES NEW OPT STEM EXTENSION PROGRAM – EFFECTIVE MAY 10, 2016

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months and that students are now permitted an aggregate of 170 days of unemployment for OPT and the STEM Extension period.  For more information, please visit https://studyinthestates.dhs.gov/


EMPLOYER REQUIREMENTS

The new STEM Extension Program requires more from employers.  To employ a student under the new STEM Program, employers must:

  1. Be an E-Verify employer.  This remains unchanged from the previous STEM Extension Program.
  2. Pay the student a wage commensurate to similarly situated US workers.  The calculation of this wage should be documented in the student’s employment record.
  3. Employ the OPT student for at least 20 hours per week in a position that is directly related to the student’s degree.
  4. Report any material changes in the student’s employment to the appropriate school official.  Material changes include: a change in the student’s hours, compensation, worksite, supervisor, or changes to the corporate structure.  Employers must also report a termination or resignation of employment to the school official within 5 business days.
  5. Be subject to site visits by USCIS Officers to verify the student’s employment.
  6. Complete and comply with a training plan for the student’s employment.  See below for additional details about the training plan.



TRAINING PLAN

The STEM Extension Training Plan has four components:

  1. Describe the student’s role.  List specific tasks, give time frames and goals, describe the phases of the student’s training.
  2. Identify the goals and objectives of the training.  State specific skills, techniques, or knowledge the student will gain while employed and describe projects or assignments where the student will use these skills.
  3. Detail the employer’s oversight of the student.  State the frequency with which the student will meet with his/her supervisor.  Detail how the supervisor will review or sign off on the student’s work and describe any existing training programs in place.
  4. Define the measures and assessments by which the student will be evaluated.  Detail how the student’s progress will be tested.  Note any new technologies or skills which will be learned and keep a journal of or regular reviews of student’s work.


Employer’s Certification 

Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the Immigration Service.  By signing the training plan, the employer confirms:

  1. Employment is directly related to the student’s degree and achieves the objectives of the training program;
  2. Student will receive supervision and training by experienced staff;
  3. Employer has sufficient resources and personnel to provide training to the student;
  4. The OPT student is not replacing a full- or part-time, temporary or permanent US Worker.  The terms and conditions of the student’s employment are commensurate with similarly situated US Workers at the company.
  5. The training complies with all applicable federal and state requirements related to employment.



TRANSITION RULES

There are three primary groups of students impacted by the implementation of the new STEM Extension Program:

1.  Students on a 17 month STEM Extension.

  • These students with 150 days of time left on their OPT can apply for an additional 7 months of OPT, giving them the full 24 months of STEM OPT.
  • These 7 month requests must be filed between May 10 and August 8.  The request requires a new I-20, I-765, and filing fee.
  • If the student elects not to ask for the 7 month extension, the student completes the STEM OPT Period under the old rules.


2. Students with a pending STEM Extension on May 10, 2016.
  • The new rules apply to the STEM extension request.  These students should expect an RFE to be issued requesting a training plan and other new requirements. 
  • By responding to the RFE the student amends the STEM OPT to the full 24 month period without filing a new request.


3.  Students on a 12 month OPT.



  • If the OPT expires before May 10, the student should file for the 17 month STEM Extension and expect an RFE (as outlined in #2 above).
  • If the OPT expires after May 10, the student should file by June 1 under either STEM Extension Program - the 17 month or 24 month.
  • If the OPT expires after June 1, the student must file the STEM Extension under the 24 month program.

Wednesday, January 20, 2016

H-1B TELECONFERENCE FEB 4, 2016

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2016.

H-1B Teleconference Agenda
  • H-1B Cap Basics and Projections
  • H-1B Dependency
  • H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?
  • Hot issues:  
    • CPT / OPT maintenance
    • NIV maintenance
    • Cap-gap for F-1s
    • H4 EAD rule
    • STEM OPT Lawsuit
    • Increased filing fees for 50/50 employers
  • Top 10 things H-1B employers can do to stay compliant
  • Legislative Update
    • DACA/DAPA to the Supreme Court
    • I-140 EAD
    • Presidential Election: What we can expect from President Trump
  • Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Monday, September 28, 2015

USCIS ISSUES REVISED OCT 2015 VISA BULLETIN

MU VISA ADVISOR:  USCIS ISSUES REVISED OCT 2015 VISA BULLETIN 

On late Friday afternoon the USCIS and DOS issued a revised October 2015 Visa Bulletin.  The new revised Visa Bulletin has a devastating impact on those in the US and who qualify as China EB-2, India EB-2, and Philippines EB-3. 

The USCIS published a stilted “explanation” for the revision,
Following consultations with the Department of Homeland Security (DHS), the Dates for Filing Applications for some categories in the Family-Sponsored and Employment-Based preferences have been adjusted to better reflect a timeframe justifying immediate action in the application process.
This revised Visa Bulletin means that the majority of people who could have filed their I-485s on October 1, 2015, now must indefinitely wait.  Allowing long-suffering workers the flexibility that would come with the filing of I-485s would have been excellent policy.  Implementing that policy was excellent government action.  Implementing the policy and then rescinding the policy is incompetence.
Many of these immigrant workers spent thousands of dollars hiring counsel to prepare their Applications.  They took time off from their jobs to subject themselves to ridiculously unnecessary (and costly) medical examinations. 
There are already rumors that the USCIS and DOS are being threatened with lawsuits.  There is also a rumor that the USCIS and DOS may not want to repeat the fiasco that was the Visa Gate in 2007, and therefore may rescind this Revised Visa Bulletin.  
If you have been impacted by this, MU Law advises that you hold tight.  There is a chance that the USCIS does the decent thing and rescinds this amended Visa Bulletin.
Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 


Wednesday, September 9, 2015

NEW VISA BULLETIN ALLOWS EARLY FILING OF I-485s

In a ground-breaking change, the Department of State and the USCIS have changed their process for accepting I-485, Applications for Adjustment of Status.  Adjustment of Status applications will now be accepted earlier than when the priority date is current. 

The Department of State will now publish two Employment-based Visa Bulletin charts each month: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). 

The earlier filing of the I-485 has several direct benefits for both employers and employees:
  • Applicants can file for their Employment Authorization Documents (EADs) concurrently with their I-485.  This allows Applicants to take advantage of the AC-21 rule for same or similar employment.  This also allows applicant to work at second jobs.
  • Applicants can file for their Advance Paroles (APs) concurrently with their I-485.  This allows Applicants to travel without having to obtain a new visa stamp.
  • Spouses of applicants can apply for both EADs and APs.  This allows spouse’s work authorization.
  • Fewer H-1B amendments and extensions should need to be filed.  None of the H-1B amendment rules apply to people who hold EADs.


If you are an employer or an employee who can now file an I-485, please contact our office so that we can prepare and file your I-485.


A. APPLICATION FINAL ACTION DATES

This Chart is comparable to the old Visa Bulletin.

Employment- Based
All Other
CHINA - mainland born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
01JAN12
01MAY05
C
3rd
15AUG15
15OCT11
08MAR04
01JAN07


B. DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may:

  • Consular Applicants:  assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions.
  • Adjustment of Status Applicants: file Adjustment of Status, EAD and APs.



Employment- Based
All Other
CHINA - mainland born
INDIA
PHILIPPINES
1st
C
C
C
C
2nd
C
01MAY14
01JUL11
C
3rd
01SEP15
01OCT13
01JUL05
01JAN15

Thursday, August 20, 2015

MU LAW CLIENT CONFERENCE CALL

Musillo Unkenholt will hold a free teleconference on Thursday September 3,2014 at 3PM ET / 12 noon PT. All clients and friends of the firm are encouraged to dial-in to the call. If you would like to register for the call, please send an email to: Annalisa@muimmigration.com.

The agenda for the teleconference includes:


* H-1B onboarding starts Oct 1: What do employers need to do to stay compliant?

* When does my H-1B worker have to start working? The 30/60 day rule.
* Update on the Simeio Solutions case and Amended H-1Bs.
* When do I have to start paying an H-1B worker's salary?
* Form I-9 compliance
* E-Verify compliance
* Managing Social Security number issues.
* Handling Professional licensure issues.
* Working with the Consulate for H-1B Visa Issuance.
* H-1B cap 2015 final numbers and projections for 2016

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.

Thursday, July 23, 2015

USCIS ISSUES FINAL GUIDANCE ON AMENDED H-1B PETITIONS AFTER SIMEIO SOLUTIONS

MU VISA ADVISOR: 

The USCIS has again revised its interpretation of the opinion that it issued in the controversial Simeio Solutions decision.  The revised Final Guidance says that the Simeio Solutions decision will not be applied retroactively, which is a significant change from the USCIS’ May 26, 2015 Guidance.  The revised Final Guidance now says that these actions must be taken:

Date of H-1B employee's move
Action
On or before April 9, 2015
No amended H-1B is needed.
April 9 - August 19, 2015
Amended H-1B must be filed before Jan. 15, 2016.
After August 19, 2015
Must file an amended H-1B once LCA is certified.

H-1B employers should note that generally an H-1B employer has 30 days from the date of the move to file the amended H-1B.  Accordingly, we advise that MU Law is informed of the move immediately, so that we can prepare the LCA and the amended H-1B filing.

The revised Final Guidance reconfirmed that an amended H-1B petition is NOT required if the geographical move is within an “area of intended employment.”  An “area of intended employment” is generally the same as a Metropolitan Statistical Area.  Likewise, an amended H-1B petition is NOT required if the H-1B employee is attending training sessions, seminars, conferences, etc. of a short duration.

The revised Final Guidance also confirms that if an employer's amended H-1B petition is denied, but the original petition remains valid, the H-1B employee may return to work at the place of employment covered by the original petition.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 


Tuesday, June 9, 2015

** REMINDER ** MU VISA ADVISOR: H-1B AMENDMENT NEEDED FOR ALL GEOGRAPHICAL CHANGES, EVEN IF BEFORE APRIL 9, 2015

** REMINDER **

MU VISA ADVISOR:   H-1B AMENDMENT NEEDED FOR ALL GEOGRAPHICAL CHANGES, EVEN IF BEFORE APRIL 9, 2015

The USCIS has just released Guidance on its webpage further clarifying the Simeio Solutions case from April 2015. 
The most impactful part of the Guidance is that the USCIS is now requiring all H-1B employers to file an H-1B amendment for employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision. 
Simeio Solutions holds that a new H-1B petition is required whenever an H-1B worker changes his geographical location, if that geographical change requires a new Labor Condition Application (LCA).  Typically geographical changes outside of a metropolitan statistical area require a new LCA. 
The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision.  This new interpretation reaches back in time, requiring all prior geographical moves to file amended H-1Bs.
Accordingly all MU Law clients are encouraged to fully review their H-1B roster and confirm that the H-1B employee’s current worksite matches the worksite listed on the employee’s I-129 petition.  If the H-1B employee’s current worksite does not match the worksite listed on the employee’s I-129 petition, then we should prepare and file an amended H-1B petition. 
Thankfully, the Guidance is giving all H-1B employers a 90 day grace period, until August 19, 2015, to comply with this latest Guidance interpretation.
The new USCIS Guidance also confirms existing safe harbors within the law.  An amended H-1B does not have to be filed when:
-          The geographical move is within the same metropolitan statistical area.
-          Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.
-          The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive.  


Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Sunday, April 19, 2015

MU VISA ADVISOR: H-1B TELECONFERENCE APRIL 22, 2015


MU Law will be holding a free teleconference for our clients on April 22,
2015 at 2PM ET / 11AM PT.  Interested clients should email MU’s Annalisa
Smith (annalisa@muimmigration.com), who can register you for the
teleconference.

The agenda will include:

1.       H-1B cap update.

2.       Analysis of the new H-1B ruling, Matter of Simeio Solutions, which
mandates a new or amended H-1B petition whenever there is a change in the
employment location.

3.       What the new Visa Bulletin means for the Philippines EB-3
category.

4.       Hot topics in PERM adjudications.

5.       Legislative update.

Please contact your MU immigration attorney if you have any questions about
this MU Visa Advisor or any other immigration issue.

Thursday, April 9, 2015

MU VISA ADVISOR: NEW H-1B NOW REQUIRED WHEN AN H-1B WORKER CHANGES LOCATION

MU VISA ADVISOR:   NEW H-1B NOW REQUIRED WHEN AN H-1B WORKER CHANGES LOCATION

In a dramatic change ignoring 20 years of past precedent, the
petition must be filed every time an H-1B employee changes worksites, if
the new worksite is outside of the original metropolitan area.

Effective immediately all MU Law client-employers must file new or amended
H-1B petitions to protect these H-1B workers.  This will dramatically and
negatively change the process for many H-1B employers, especially those
employers in the staffing and consulting industries.  These industries
should expect to spend additional time and cost preparing and filing
previously unnecessary H-1B amendment petitions.

The AAO decision is titled, Matter of Simeio Solutions, LLC.

Wednesday, January 21, 2015

H-1B TELECONFERENCE FEB 4, 2015

In anticipation of the H-1B cap filing date of April 1, 2015, MU Law will be holding a free teleconference for our clients on February 4, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Annalisa Smith, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2015.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

Friday, November 21, 2014

PRESIDENT OBAMA TAKES EXECUTIVE ACTION

Last night President Obama announced the Immigration Accountability Executive Actions (IAEA), which is a series of wide-ranging changes to immigration policy.  Most of the major changes are centered on the undocumented community.  However, some changes will impact the business community.  At this point, only summary policies have been released by the administration.  Over the next few days and weeks, more details will emerge.  None of the changes are expected to take effect until after the New Year

MU Law will be holding a client teleconference on Tuesday December 2, 2014 at 2PM ET / 11AM PT for all clients and friends of the firm.  If you or anyone in your organization would like to dial-in to the teleconference, please contact Annalisa Smith (Annalisa@muimmigration.com) to register.

Here are the key components of the IAEA, with a focus on the policies that will impact clients and friends of MU Law:

1. Allowing earlier filing of the I-485, Adjustment of Status: Green card applicants will no longer have to wait until their priority date is current in order to file their I-485, Adjustment of Status. This is especially helpful for India and China EB-2 applicants and all EB-3 applicants in the US.

a. By allowing green card applicants to file their I-485, Adjustment of Status much earlier in the green card process than under the current process, applicant’s spouses will be able to obtain work authorization (EAD cards) many years earlier than under the current policy. 
b.  Once an I-485 is pending for 180 days, applicants are able to leave their green card employer-sponsor provided that they have found a “same or similar” position.  The President has also announced that the USCIS will be providing guidance on the definition of “same or similar”.  The forthcoming guidance is expected to be more liberal than the current interpretation.

2.  H-4 Work Authorization.  This long-proposed rule will allow spouses of H-1B workers to obtain work authorization.  Earlier this summer, the USCIS floated a proposal that limited the EAD to H-4 spouses whose H-1B workers have been in the green card process for at least one year.  A final regulation is expected in December or January.

3. PERM.  The Department of Labor is expected to “modernize” the PERM process, including a potential “harmless error” provision.

4. Entrepreneurs.  The administration will be “clarifying” rules regarding using the national interest waiver and parole processes for entrepreneurs.  It is expected that these rules will be liberalized to encourage investment and entrepreneurs.

5. L-1B Guidance.  The L-1B visa system is riddled with inconsistent decision-making.  The USCIS will be offering guidance to help on this issue.

6. OPT.  Optional Practical Training will be expanded.

7. Deferred Action expansion.  This provision is the focus of much of the media attention.  Some undocumented and illegal people in the US will be able to gain temporary three year work authorization and no longer be under the threat of deportation/removal. 

a. Deferred Action for Parents (DAP): Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present since January 1, 2010, and who pass background checks and pay back taxes; and

b.  DACA Expansion: The age cap on DACA will be removed and the date when continuous presence must have started will be changed from June 15, 2007 to January 1, 2010. 

Wednesday, September 3, 2014

MU LAW FREE CLIENT CONFERENCE CALL

Musillo Unkenholt will hold a free teleconference on Wednesday September 17, 2014 at 3PM ET / 12 noon PT.  All clients and friends of the firm are encouraged to dial-in to the call.  If you would like to register for the call, please send an email to: Annalisa@muimmigration.com.

The agenda for the teleconference includes:
* H-1B onboarding starts Oct 1: What do employers need to do to stay compliant?
* When does my H-1B worker have to start working?  The 30/60 day rule.
* When do I have to start paying an H-1B worker's salary?
* Form I-9 compliance
* E-Verify compliance
* Managing Social Security number issues.
* Handling Professional licensure issues.
* Working with the Consulate for H-1B Visa Issuance.
* H-1B cap 2014 final numbers and projections for 2015.
* What Congress and Pres. Obama are expected to do in 2014 in employment-based immigration.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.

Tuesday, July 29, 2014

MU VISA ADVISOR: MU Law closing at 12 noon on July 30


Musillo Unkenholt LLC turned five years old on July 1, 2014!  It would have been impossible to have our five years of success without the hard-effort and talent of our Legal team.  In celebration of our fifth birthday and in recognition of everyone's hard work, we will closing the office at 12 noon (ET) on Wednesday July 30.  We are having a group outing at the Cincinnati Reds baseball game.  If you contact us during the afternoon of July 30, rest assured that we will promptly return your call or email on Thursday.


Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

Friday, April 11, 2014

USCIS RECEIVED 172,500 H-1Bs

MU VISA ADVISOR:  USCIS RECEIVED 172,500 H-1Bs

The USCIS has just announced that it received 172,500 H-1B cap-subject petitions for this year’s H-1B cap.  The H-1B cap is 85,000, of which 20,000 are reserved for graduates of US Masters Programs.  Essentially the USCIS received 200% of the H-1B cap allocation.  Put another way, only 50% of the H-1B petitions will be accepted under the H-1B lottery.

The USCIS has inputted all 172,500 and processed the H-1B lottery for both the H-1B masters cap and the H-1B regular cap.  The USCIS has not yet announced when it will notify H-1B lottery winners and losers, although the Premium Process Service petitions should start being notified by April 28.

A higher percentage of masters cap H-1B petitions are accepted than H-1B regular cap petitions because H-1B master cap petitions that do not win the H-1B masters lottery are re-submitted into the H-1B regular cap lottery.


As soon as MU Law begins receiving confirmation of H-1B lottery winner and losers will immediate contact our clients.

Monday, April 7, 2014

H-1B CAP HAS BEEN REACHED

In a surprise to no one, USCIS announced today that it has reached the H-1B cap for both the regular and master’s cap.  The USCIS is expected to hold an H-1B lottery within the next week. 

If your H-1B petition is filed under the Premium Processing Service (PPS) you should hear of its acceptance no later than April 28.  However if your PPS petition is not accepted, it may take until mid-May before you find out that the case was not accepted under the H-1B lottery. 

Reminder:  The PPS does not give a petitioner any greater chance at winning the H-1B lottery, but it does allow for speedier notice and decision-making.

If your H-1B petition is filed under the Regular Processing path it may be until May or even June before your find out if your H-1B petition is accepted under the lottery or not.  Last year it took about 10 weeks before all H1-B petitioners were notified of their acceptance or rejection.

Wednesday, January 22, 2014

H-1B TELECONFERENCE FEB 12

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 12

In anticipation of the H-1B cap filing date of April 1, 2014, MU Law will be holding a free teleconference for our clients on February 12, 2014 at 2PM / 11AM PT.  Interested clients should email MU’s Lauren Gramke, who can register you for the teleconference.

Last year the H-1B cap was reached in the first week; we expect that the demand will be greater this year.  It is imperative that all H-1B cap-subject Petitions are filled on April 1, 2014 in order to insure that the H-1B Petition qualifies under this year’s H-1B cap.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 


Thursday, October 17, 2013

GOVERNMENT SHUTDOWN ENDS; SERVICES SLOWLY COMING ON-LINE

Late yesterday the Senate and House each passed a budget bill, which was signed by President Obama.  The bill’s signing ends the two week federal government shutdown.  The shutdown obstructed many immigration services, notably the Department of Labor’s iCert system, which was shuttered.  Through the iCert system employers and their lawyers apply for Labor Condition Applications (LCAs), Prevailing Wage Determination (PWDs) and Permanent Employment Labor certification (PERM).  The discontinuation of these programs meant that H-1Bs and PERM-based green card applications effectively stopped.    

As of this writing, the iCert system remains inoperable.  It is expected that the iCert system will commence operating within 24 hours.  At that time MU Law immediately will begin filing LCAs, PWDs, and PERM applications.  We are prioritizing those matters with a legal deadline or business necessity. 


Other immigration services were slowed by the shutdown.  It is expected that those services should return to normal processing times in the near future. 

Wednesday, October 9, 2013

MANAGING LCA ISSUES DURING THE GOVERNMENT SHUTDOWN

The issues described in this MU Visa Advisor are complex and very much driven by the facts of your case.  Please do not hesitate to contact MU Law if you have any questions about these issues.

The Federal Government Shutdown has caused the Department of Labor to furlough about 80% of its workforce.  As a result the DOL’s iCert System, which is the manner through which LCAs are filed, has been turned off.  It is impossible to file LCAs, leading to many questions from H-1B employers. 

Background: The LCA System

The Labor Condition Application (LCA) is the centerpiece of the H-1B program.  It serves two primary functions.  First, it forces the H-1B employer to certify that the wage that it is offering to pay the H-1B worker is not lower than similar US workers.  Second, the LCA includes a mandatory mechanism whereby H-1B employers must notify potential US workers of their right to contact the Department of Labor (DOL) if they believe that the H-1B employer is engaging in prohibited behavior.

There are two ways that the LCA is utilized in the H-1B process.  First, new H-1B petitions must be submitted with an LCA that has been certified by the DOL.  Second, if an employee is going to change worksites, the employer must provide new Notice to the workers at this new worksite.  In some instance, the H-1B employer must file a new LCA with the DOL and wait the seven days for the DOL to certify the new LCA.  In other instances, the H-1B employer must not only obtain a new certified LCA but must also file a new H-1B.

The Government Shutdown

Unfortunately with the government shutdown the DOL has shuttered the LCA system.  It is impossible to file LCAs.  The DOL has not given the public any guidance on how to handle new H-1B petitions nor how to handle new situations where a new LCA is required.

On account of the fact that LCAs cannot be filed, H-1B employees should not change worksites in instances where a new LCA would normally be required.  This is the safest approach.  Once the government shutdown ends, H-1B employers can file an LCA and the employee can move once the new LCA is certified and in place.

On the bright side there are some instances when a new LCA is not required. 


  • 1.       When H-1B workers change worksites, but the new worksite is still within the prior LCA metropolitan area, a new LCA is not required.  An H-1B employer must still post notice at the new worksite. 

  • 2.      The LCA rules allow H-1B employees to work at new worksites when the new worksite is peripatetic or very short-term.  For example a new certified LCA is not required if an H-1B employee is attending meetings for a few days in a new location.

If business needs demand that an H-1B must change worksites, then the H-1B employer must be aware that it may be technically violating law, although a legal argument could be made that compliance with the law was impossible on account of the shutdown.  Penalties can range from $1,000 - $35,000 per violation.  Debarment from the H-1B program could also occur.  After considering these potential penalties, an H-1B employer still feels compelled to move the H-1B worker, we urge that H-1B employers take all three of these additional measures to mitigate risk:

·         Make sure to post LCA posting.  Even though we would not be able to file an LCA, we would still be able to post Notice at the destination worksite.  We can prepare the Notice Posting for you.
·         File an LCA at the conclusion of the shutdown.

·         File an amended H-1B at the conclusion of the shutdown and the certification of the new LCA.