Monthly Archives: July 2016

 Why Is It Taking So Long for My Labor To be Filed?

“Why is it taking so long for my Labor to be filed?”  

by Sandra Gross, Esq.Calendar Pages

Labor certification is a lengthy process, and at least 3-6 months or longer are needed in order to prepare a labor for submission.   The purpose of labor certification is to demonstrate to the Department of Labor that despite its best efforts, the employer was not able to fill the position with a qualified US worker, and in order to show this, the employer must follow the prescribed recruitment steps.

Before the process even begins, we need to have information about the company sponsoring the petition, the job (and its location) which the foreign worker has or is being offered, and the foreign worker’s education and past paid experience.  The job description is supposed to indicate the minimum requirements for the position and not be tied to the foreign worker’s experience.    This job description is critical because in filing the I-140 or immigrant visa petition after the labor is approved, we must demonstrate that the foreign worker has met all of the minimum requirements for the position, otherwise, the I-140 will be denied.  Another crucial issue at the I-140 stage will be the employer’s ability to pay the wage.

Once we have prepared the job description, we request a wage determination from the Department of Labor.  Currently, this step is taking about 2.5 months.   The wage determination information is included in the labor, since the employer is agreeing to pay this wage once the foreign worker gets his green card. After receiving the wage determination, the employer has to prepare and post a Job Posting Notice, notifying his other employers that he is offering the position, the job duties, location, and wage, and where to file any complaints.  The Job Posting Notice has to be posted for 10 business days either at the company headquarters or using other electronic or printed media which the company typically uses, and the employer must wait another 30 days before being able to file the labor.

We also post a job order with the state department of labor, which makes it available to people seeking work.  The job order must be posted for a minimum of 30 days with the state, and the labor cannot be filed for a further 30 days after the job order was posted (total wait time is 60 days).  The recruitment must be conducted in the location where the foreign worker’s workplace is located, and in the case of roving employees, the recruitment is conducted at the company’s headquarters.

In addition to the job order and the wage determination, the employer must publish two Sunday newspaper ads in a newspaper which is most suitable to find qualified workers, and must also pick 3 alternate methods of recruitment (from an approved list), which have to all be different from each other.  The employer must wait at least 30 days after all of the regular and alternate recruitment steps save one, but none of the recruitment can be older than 180 days.  Once all the recruitment steps are done, the employer must conduct screening and interviews with any applicants who have responded to the ads, and prepare a recruitment report to summarize the results.  If the employer finds any “minimally qualified” workers, the labor cannot be filed.  Even if the foreign worker is better qualified, if a US worker can fill the position by satisfying the minimum requirements, the labor is useless and cannot be filed.

Once all of the recruitment is done and if no US workers were qualified based on this recruitment, we prepared the ETA 9089 for review, and then the labor is filed online.  Since no corrections are possible once the labor is submitted, it is important to review all of the information carefully since even a minor error could result in a denial.  Right now, it takes between 3-6 months for the labor to be reviewed and decided (approved, denied or audited). None of the recruitment is attached to the filing, so about 25% of the time, the Department of Labor audits the case, meaning it asks for documentation of all recruitment steps and sometimes for additional documents such as resumes received or proof of “business necessity” for the requirements included in the recruitment.  The employer must respond within 30 days, and provide copies of the recruitment steps as well as other proof that the recruitment was done correctly.  For that reason, the employer and his or her attorney must keep accurate records of all of the recruitment steps and make sure all of the requirements mentioned are the same throughout.

As you can see, labor certification requires many steps and prescribed waiting times which cannot be rushed.

Disclaimer: The information provided here is not to be construed as legal advice nor pres umed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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L-1 versus H-1B

L-1 Visa Overview: Temporary, Nonimmigrant Visas for Intra-company Transferees

As you may be aware, bringing a foreign worker to the US on an H-1B temporary work visa is difficult because there are a limited numbers available each year, and the visa is so over-subscribed that only about 1 out of 3 are picked up in the lottery.  If there is a company with an overseas subsidiary, another possible visa for a foreign worker is an L-1 (intra-company transferee) which is a non-immigrant petition filed by a company on behalf of an employee coming to the United States temporarily to work for the company in a managerial, executive, or specialized knowledge capacity.  The employee must have worked for the company or its related entity overseas for at least one year, either in a managerial, executive, or specialized knowledge capacity within the three years preceding application for admission.

Qualifying Relationship Between Overseas Company and U.S. Company:  the overseas company and U.S. company must show a qualifying relationship such as parent, subsidiary, affiliate, joint venture, proprietorship ,or branch office.

L-1 Requirements: The L-1 individual may work in either a Managerial/Executive or Specialized Knowledge capacity, and the individual must have worked for the foreign entity at least one year in the prior three years.  Note:  If the individual wishing to come to the United States on L-1 is an owner or major stockholder of the petitioning company, the USCIS requests evidence that the individual is coming to the United States temporarily, and will be transferred to an assignment abroad, after completion of the temporary assignment in the U.S.

L-1A:  Managerial Capacity:   First line supervisors are not considered managerial unless they are supervising professional-level employees.   Therefore, to be managerial, the person must either be managing other managers or managing professional-level employees who have at least a bachelor’s degree or its equivalent. An L-1A managerial capacity employee may work for a maximum of 7 years in L-1A status.

L-1A Executive Capacity:  The person must direct the management of the company or one of its major functions; he or she must establish policies and goals; he or she must exercise wide latitude in discretionary decision making; and must only receive general supervision or direction from higher level executives.  An L-1A executive capacity employee may work for a maximum of 7 years in L-1A status.

L-1B: Specialized Knowledge:  For specialized knowledge capacity, the individual must have specialized knowledge in the company’s products, processes or procedures.  If individual is coming to the US in a specialized knowledge capacity, then the individual can only be located off-site, if the sponsoring company will continue to maintain control over the individual’s work.  Specialized knowledge of the company’s products or processes must be necessary for the job.  An L-1B specialized knowledge employee may work for a maximum of 5 years in L-1B status.  L-1B status is very difficult to get.

Blanket L-1’s:  A blanket L-1 allows a company to pre-qualify for L-1 status for its qualified employees.  With an approved blanket petition, there is no need for the company to file a separate petition for each L-1 employee.  Only certain companies can qualify for blanket petitions.  Namely, a company must meet normal L-1 requirements, plus have 3 or more branches, affiliates or subsidiaries and must have combined U.S. annual sales of at least $25 million, at least 1,000 employees (U.S.), or received approval of at least 10 L petitions in prior year.

Disclaimer: The information provided here is not to be construed as legal advice nor presumed to be indefinitely up to date. This information is of a general nature and is not intended to apply to any specific or particular circumstance.

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