Healthcare Blog

The USCIS Ombudsman was created by the Homeland Security Act of 2002. The Ombudsman’s role is to provide recommendations to the USCIS for resolving individual and employer problems with the USCIS. The Ombudsman’s latest recommendation focuses on addressing the recent issues employers are having with the new icert LCA portal. In order to deal with the technical issues (e.g. incorrectly denied LCAs for failure to verify the FEIN number of the employer) and hence delay in filings, which have caused significantly disruption to many’s business operations, the Ombudsman is recommending the following to the USCIS:

(1) Reinstate USCIS’ previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) Establish a temporary policy under which USCIS would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

We will keep you posted if the USCIS agrees to these recommendations. Doing so would significantly help employers in their H1b filings until, that is, all of the kinks are worked out of the icert LCA system.

Often when an employer is applying for an L-1A (multinational executive or manager) petition for a new office they end up getting less than the one year of validity time on the petition. This is due in part to processing delays and/or delays obtaining a visa issuance appointments at the consulates. As such, the American Immigration Lawyers Association (AILA) has worked with the Vermont Service Center to come up with a solution. The VSC has confirmed that they will start accepting L-1A petitions for new offices with the following requested employment validity dates:

From: “Date of Approval”
To: “One year from date of approval”

This will ensure that the petition is given a period of authorized stay for the full one year as is granted in the statute.

This past Tuesday, Congress passed a three year extension to the E-Verify system (i.e. the system that lets employers check whether newly hired workers are in the country legally). In addition to extending the E-Verify program, Congress also voted to approve $137 million for the program over the three years as part of a $43 billion spending bill for the Homeland Security Department. The bill is now set to head to the White House where it is expected that President Obama will sign it into law soon. Many lawmakers wish the E-Verify program should be part of a comprehensive immigration reform package. However, given the focus on health care reform, it is unlikely that we will see an overhaul to the nation’s immigration system until next year.
Homeland Security are reporting that the E-Verify program is used by more than 126,000 employers nationawide, with 1,000 business signing up for the system each week. Federal subcontractors are now required to use the system. DHS is claiming the system is 94% accurate. Currently, Arizona, Colorado, Georgia, Idaho, Minnesota, Missouri, Mississippi, North Carolina, Oklahoma, Rhode Island, South Carolina, and Utah have passed legislation mandating some or all employers use the E-Verify system. For more information, contact your HLG attorney.

As we reported earlier this summer, the House and Senate passed a joint resolution to extend specific immigration programs including the Conrad 30 program which allows individual states to recommend a waiver of a foreign physician’s 2-year home residence requirement if the physician is willing to work in a healthcare shortage area within the state.

President Obama signed this bill into law on 09/24/2009 and thus the ability of foreign physicians to seek waivers of their visa requirements is secured for an additional three years.

http://appropriations.house.gov/pdf/Conference_Summary_Fy2010_LegBranch_and_CR_09.24.2009.pdf

On Friday, October 2, the American Immigration Lawyers Association held a Fall Conference in Pittsburgh, PA to discuss complex corporate immigration issues, including — what’s going on with PERM these days?!?

Mike Hammond, a featured presenter on Appellate & Litigation topics, reported that following statistics given by AILA Liaisons during the Corporate PERM panel:

• Atlanta DOL has approximately 65,000 pending cases;
• Approximately 34,000 are in Final Review (non-audited, regular processing);
• Approximately 24,000 cases are in the Audit Queue and they are working on cases filed in October 2007;
• There are approximately 3,000 cases in appeal and DOL gives an average processing time of 18 months to review appeals.

(**Note, the figures provided do not actually add up to 65,000 — however these were the figures given during the presentation. Hopefully they did not lose the other 4,000 cases!)

Other important notes from this presentation included DOL revising their “goal processing time” from a matter of weeks to one year of processing time for the average case in final review.

DOL has all but said that there is no timeframe for implementing the new PERM form in the near future — they did not commit to when it would be implemented but said that it would likely be years, not months before the new form becomes a requirement.

Also the panel reported that PERM cases have started moving again, after a mysterious 6 months halt to adjudications. We can confirm that this rumor is true based on several PERM approvals that came to our office last week.

Stay tuned for more on PERM and thanks Mike for bringing us this juicy info!