5 June 2019

OFLC Announces Electronic Filing of Prevailing Wage Requests in FLAG

On June 4, 2019, The Office of Foreign Labor Certification (OFLC) announced the roll-out of the electronic filing of Prevailing Wage Requests in the Foreign Labor Application Gateway (FLAG) system. The FLAG system is being developed to improve customer service and modernize the administration of foreign labor certification programs. FLAG is designed to replace OFLC’s current iCERT System and will serve as the new application filing and case management system for all foreign labor certification programs.

FLAG System Implementation for Form ETA-9141 – Application for Prevailing Wage Determination 

  • Beginning Monday, June 10, 2019, OFLC will accept online submissions of the Application for Prevailing Wage Determination in the FLAG System covering all visa programs, including PERM Labor Certification. As of June 10th, stakeholders will no longer be able to submit Prevailing Wage Determination applications using the iCERT System. 
  • If Prevailing Wage Determination applications were submitted through the iCERT System before 12:00 a.m. Eastern Time June 10, 2019, the OFLC’s National Prevailing Wage Center (NPWC) will continue to process those applications and stakeholders will still be able to access their iCERT System accounts to check the status of applications and obtain Prevailing Wage Determinations.

OFLC has provided instructional videos to help stakeholders create and manage a FLAG System account and to prepare the Prevailing Wage Determination application for submission to the NPWC. To view these instructional videos, please visit the Prevailing Wage Program page on the FLAG System at https://flag.dol.gov/. New videos will be posted Friday, June 7, 2019.

OFLC has also provided an estimated timeline for the ability to file applications electronically in FLAG for H-1B, H-1B1, and E-3 programs (e.g., ETA-9035): https://flag.dol.gov/

17 May 2019

USCIS Completes Data Entry of Fiscal Year 2020 H-1B Cap Subject Petitions

USCIS announced today that it has completed data entry for all fiscal year 2020 H-1B cap-subject petitions selected in the computer-generated random selection process (lottery), including those selected under the U.S. advanced degree exemption. USCIS will now begin returning all H-1B cap-subject petitions that were not selected in the lottery and will issue an announcement once all petitioners are notified. Due to the volume of filings, USCIS cannot provide a definite time frame for returning petitions that were not selected.

Please note that USCIS may transfer some H-1B cap-subject petitions between the Vermont Service Center and the California Service Center to balance the workload. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition.

11 April 2019

USCIS Completes H-1B Lottery for FY2020 & Confirms that the Master’s Cap Has Been Reached

USCIS  has completed the H-1B cap random selection process. On April 10, 2019, USCIS used a computer-generated random selection process, “lottery,” to select enough H-1B petitions to meet the 65,000 congressionally-mandated regular cap and the 20,000 masters cap, under the advanced degree exemption, for fiscal year (FY) 2020. After completing the lottery for the regular cap, USCIS also determined that it had received enough petitions projected as sufficient to meet the master’s cap.

USCIS also announced that it received 201,011 H-1B petitions during this filing period, which began April 1st. This is an increase from FY 2019, where USCIS received 190,098 H-1B petitions during the filing period!

As per the new H-1B regulation, USCIS first conducted the lottery for H-1B cap-subject petitions submitted on behalf of all beneficiaries, including those that may have been eligible for the master’s cap. USCIS then selected a number projected to reach the master’s cap from the remaining eligible petitions.

We should begin to see receipt notices trickle in over the next few weeks. If you receive a receipt notice, this means your H-1B petition was selected in the lottery. If your petition is selected, it will be reviewed by a USCIS Officer. An Officer can send an approval (yay!), or a Request for Evidence. If your petition was not selected, USCIS will reject and return those petitions with filing fees, unless the petition is found to be a duplicate filing.

7 April 2019

USCIS Reaches FY 2020 H-1B Regular Cap

On April 5th, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it received a sufficient number of petitions needed to reach the 65,000 H-1B visa regular cap for fiscal year (FY) 2020. USCIS stated that it will next determine whether it received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, also known as the master’s cap.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings (please see my previous post: New Policy Memo Warns Against Multiple H-1B Cap Filings for the Same Beneficiary)

I will provide further updates here regarding the master’s cap, when available.

Quick Reminders: 

  • Starting this year, USCIS will reverse the order of the H-1B lottery for the regular and master’s cap. The lottery will first be run for all H-1B cap-subject petitions filed, including those eligible for the master’s cap. USCIS will then run the lottery for the master’s cap by selecting a sufficient number of remaining eligible H-1B petitions needed to reach the master’s cap.
  • USCIS will offer premium processing in a two-phased process during the FY 2020 cap season in order to better manage requests without completely suspending the process as the agency did last year. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions. For specific details, please see my previous post: USCIS Announces a Two-Phased Approach for Premium Processing of FY 2020 H-1B Cap-Subject Petitions.

 

19 March 2019

USCIS Announces a Two-Phased Approach for Premium Processing of FY 2020 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) made its annual announcement regarding the start date for the upcoming H-1B cap season.  Specifically, USCIS stated that it will begin accepting fiscal year (FY) 2020 H-1B cap-subject petitions on April 1, 2019, and will reject any FY 2020 cap cases filed before April 1st. An additional announcement was made regarding premium processing for H-1B cap-subject petitions. USCIS will offer premium processing in a two-phased process during the FY 2020 cap season in order to better manage requests without completely suspending the process as the agency did last year. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions. Continue reading

11 March 2019

Premium Processing is Back for ALL H-1B Petitions

Premium Processing is back for ALL H-1B Petitions! USCIS will resume premium processing on Tuesday, March 12, 2019. USCIS notes the following:

  • If you have received a transfer notice for a pending H-1B petition, and you are requesting premium processing service, you must submit the premium processing request to the service center now handling the petition. A copy of the transfer notice should be included with your premium processing request. Failure to do so can lead to delays.
  • If you received a Request for Evidence (RFE) for a pending H-1B petition, you should also include the RFE response with the premium processing request.
  • If your petition was transferred and you send your premium processing request to the wrong service center, USCIS will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.

Here is a timeline of the premium processing debacle: Continue reading

16 February 2019

Premium Processing Resumes for H-1B Petitions Filed on or Before December 21, 2018

U.S. Citizenship and Immigration Services (USCIS) will resume premium processing on Tuesday, February 19, 2019, for all H-1B petitions filed on or before December 21, 2018. USCIS noted the following: Continue reading

9 February 2019

PERM Wage Determinations Causing Significant Delay in PERM Filings

There are usually 3 steps to the employment based green card process: (1) PERM Labor Certification, (2) I-140 Immigrant Petition and (3) Adjustment of Status to lawful permanent resident. As part of the PERM Labor Certification process, an employer must obtain a Prevailing Wage Determination from the Department of Labor.

The Department of Labor issues a Prevailing Wage Determination based on multiple factors, including, but not limited to, the job description, the minimum requirements for the position, and the area of intended employment. An employer must offer at least the prevailing wage for the sponsored position.

In addition to obtaining a Prevailing Wage Determination, the employer must conduct recruitment to test the U.S. labor market to determine if there are any able, willing, qualified, and available U.S. workers for the job opportunity. Essentially, the employer must prove that the job opportunities, wages, and working conditions of U.S. workers will not be adversely impacted by hiring a foreign worker permanently for the job. This will involve the employer advertising for the sponsored position (see my PERM FAQs for more details on this process). The recruitment process will take a minimum of 60 days to complete.

Currently, we are witnessing an increase in Prevailing Wage Determination processing times, with wage determinations taking a minimum of 4 months to be issued. This in turn can cause a significant delay in filing the PERM Labor Certification application.  Continue reading

30 January 2019

DHS Announces H-1B Lottery Final Rule

On January 30, 2019,  the Department of Homeland Security (DHS) posted for public inspection the final rule that amends the regulations governing the way H-1B cap-subject petitions will be processed. The final rule will be published on January 31, 2019 and will be effective in 60 days, just in time for the upcoming Fiscal Year (FY) 2020 H-1B cap season.  Continue reading

25 January 2019

USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Subject Petitions

USCIS announced that premium processing will resume on Monday, January 28th, for all fiscal year (FY) 2019 H-1B cap subject petitions, including those eligible for the advanced degree exemption (“master’s cap”). USCIS recommends that petitioners who have received requests for evidence (RFE) for pending FY 2019 cap subject petitions include the RFE response with their premium processing upgrade request.

The temporary suspension continues to apply to all other previously specified categories of H-1B petitions: Continue reading