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/

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

2 January 2019

Unprecedented Demand for H-2B Visas Leads to iCERT System Crash

The iCERT portal system, used to electronically file certain required applications for nonimmigrant and immigrant visas, crashed due to the overwhelming number of H-2B labor certification filings that occurred on January 1st, 2019.  Continue reading

27 November 2018

Fiscal Year 2018 PERM Statistics Released: PERM Labor Certification Filings Remain Steady

The Department of Labor (DOL) released PERM statistics for Fiscal Year 2018 (FY 2018), indicating that filed PERM Labor applications remained steady with only a slight drop, and India continued to top the list of PERM Labor applications certified that year.  Continue reading

4 August 2018

Qualifying for the Job Using Experience Gained from the Same PERM Employer: Infeasibility to Train Exception

When an employer files a PERM Labor Application, it must demonstrate that the beneficiary fully qualifies for the sponsored position.

Generally if experience is required, a beneficiary cannot use the experience gained with the sponsoring employer to qualify for the sponsored position. But, as with most things, there are exceptions to this rule:  Continue reading

25 April 2018

Helpful Tips: PERM Labor Certification

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. The PERM Labor Certification process is lengthy and requires careful maneuvering to avoid missteps along the way.

The PERM labor certification is usually the biggest hurdle to clear. So today I want to discuss some helpful tips when working on a PERM application. This list is in no way exhaustive and merely touches the surface of this complicated process. It’s important to understand that the Department of Labor’s (DOL) role in this process is to protect U.S. workers. Keeping this in mind will help you avoid mistakes.  Continue reading

3 January 2018

Are Major Changes Coming for H-1B Extensions Beyond the 6 Year Limit?

UPDATE FROM AILA 01/09/2018 

“In a news update on January 8, 2018, the McClatchy DC news service reported
that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a
regulatory change to the H-1B extension rules, as had previously been reported in a December 30,
2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is
not considering changing its interpretation of section 104(c) of the American Competitiveness in
the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year
limit for H-1B workers who have reached certain milestones in the green card process. USCIS
went on to note that “such a change would not likely result in these H-1B holders having to leave
the United States because employers could request extensions in one-year increments under
section 106(a)-(b) of AC21 instead.” USCIS did, however, indicate that the agency is considering
a number of policy and regulatory changes to carry out the President’s Buy American, Hire
American” executive order, including conducting a “thorough review” of employment-based visa
programs.”


 

Over the last few days, news has spread regarding potential new regulations that could greatly impact H-1B extensions beyond the 6 year limitation. The word around town is that the Department of Homeland Security (DHS) has discussed the idea to stop H-1B extensions beyond the 6 year limit based on certain language found under the law. Continue reading

5 July 2017

PERM Prevailing Wage Redetermination Request Approved – DOL Selected Wrong Job Classification

One of the prerequisites to filing a PERM Labor Certification is to have a prevailing wage determination issued by the Department of Labor’s National Prevailing Wage Center (NPWC). The prevailing wage is the average wage paid to similarly employed  workers in a specific occupation in the area of intended employment. Among other things, the wage rate is based on the position title, the position description and minimum requirements, and the area of intended employment.

Upon submission of a prevailing wage application, we provide a Standard Occupational Classification (SOC) for the PERM position – the best match wins! The NPWC takes our “suggestion” into consideration, but they ultimately decide what classification the position falls under. Issues can arise if an improper classification is selected by the NPWC. Not only do job details differ across classifications, but wage amounts can differ considerably as well.

This is especially a problem where the NPWC’s selected classification has a higher corresponding wage than what is normal for the PERM position. The good news is, the NPWC allows employers to request a redetermination of prevailing wage where the underlying determination is incorrect. We recently had this issue arise and succeeded in our redetermination request on behalf of the employer. Continue reading

20 March 2017

PERM Issues to Consider Between Now & May

It’s that time of the year again, where submission of prevailing wage applications will result in a 90 day validity period of the Prevailing Wage Determination. My colleague, Paloma Feghali, and I, are revisiting this post from last year.  Continue reading

27 December 2016

PERM Denial Upheld for Pay Raise During Recruitment Process

Pay raises in the middle of the PERM process can be tricky. What do you do if you’ve issued a pay raise to the PERM beneficiary between recruitment and filing the PERM application? Continue reading