Update on Labor Certification Processing in New York and New Jersey
Members of the New York Chapter of the American Immigration Lawyers Association(AILA) recently met with representatives from the New York and New Jersey StateWorkforce Agency and representatives of Region 2 of the Department of Labor. TheAILA members obtained valuable information regarding the status of Labor Certificationprocessing in New York and New Jersey.
There has been a formidable backlog in the processing of Labor Certifications for over ayear. This backlog is due to a special provision offered by Section 245(i) of theImmigration and Nationality Act, allowing out-of-status aliens to apply for Adjustment ofStatus without penalty. The provisions of Section 245(i) were scheduled to sunset inApril of 2001. Employers and immigration attorneys therefore submitted an unusuallylarge number of Labor Certification applications in April of 2001 so that they could takeadvantage of Section 245(i) before it expired. State Work Force Agency (SWA) officeswere flooded with so many Labor Certification applications at that time, many of whichwere hastily prepared and incomplete, that they have not yet completed processing thosecases. Meanwhile additional cases have been filed on top of the April 2001 cases, andthe backlog has grown. This problem is nationwide, but for the purposes of this article,we will only be discussing the problem as it exists in New York and New Jersey.
As of September 30, 2002, New York had 52,250 backlogged cases and New Jersey had22,987 backlogged cases. Some of those cases used a simplified Labor Certificationprocess called Reduction in Recruitment (RIR), while others used standard LaborCertification processing procedures. New York is currently processing RIR applicationsthat were filed in April of 2001. It is estimated that RIR cases for Professional Workerswill be completed in the next 3-4 months, while there is no telling how long it will takeNew York to complete processing on Skilled Worker RIR cases filed in April of 2001.New Jersey expects to complete processing of April 2001 RIRs in January of 2003. It isimpossible to predict when cases that were filed under traditional processing in April of2001 will be completed in either New York or New Jersey, because so many cases weresubmitted for processing. New York has indicated that once it has completed processingon April 2001 cases, it will likely take two to three months to process one month worth offilings.
In order to reduce the backlog, SWA offices have been negotiating an agreement withregional offices whereby some regional staff would assist the states by going through thestates’ backlog and seeing what cases they could process.
Suggested Strategies in Labor Certification Applications
The recent meeting between members of the New York Chapter of AILA and membersof the Department of Labor addressed several strategic issues involved in the preparationof Labor Certification applications. Following is a list of the most salient points, withexplanations.
1. Difficult Reduction in Recruitment Cases.
In order for an employer to use the simplified Reduction in Recruitment (RIR) processing procedures on Labor Certification applications, the employer must prove that there is a shortage of qualified workers in the alien beneficiary’s occupational field. This is sometimes difficult to prove. For example, with the collapse of the tech sector, there is an abundance of unemployed computer professionals. It has therefore become increasingly difficult to prove that there is a shortage of qualified workers for jobs in the computer industry. However, even with the current state of the computer industry, employers may still use RIR for professional computer positions, as long as the employer proves that there is a shortage of people with the particularized skills needed for the open position. It is much easier to prove, for example, that there is a shortage of people trained to use specific software than it is to prove that there is a shortage of Database Administrators. The key is to examine the particulars of the available position and to prove that there is a limited pool of people qualified to fill it. This strategy is also applicable to jobs outside the computer industry where there is an abundance of unemployed U.S. workers.
2. Determining Wage Levels
Wage level determinations are difficult to make. Prerequisites involving level of education and length of experience, and placement within an employer’s management structure are relevant to the determination of wage level. However, these factors do not necessarily determine whether an alien beneficiary will be Level I or Level II. Level determinations are made on a case-by-case basis, and the job description is the primary determinant for a level determination. It is therefore important not to closely adhere to generic occupations found in OES/SOC, DOT, and similar coding structures. These job descriptions do not provide sufficient information to the SWA to determine whether the job is Level I or Level II. Instead, the job description should include words describing specific relevant factors such as the complexity of the job duties, the level of judgment, the amount of supervision, the nature of supervision, and the level of understanding required to perform the job duties. Any information provided in addition to the job description will not be given the same weight as the actual wording of the job description.
3. Substitution of Beneficiary
It is a standard Department of Labor policy that at any point before a Labor Certification application has been approved, the petitioning employer may substitute a new alien beneficiary on the application. This is true only in cases where the new beneficiary qualifies for the position at the time that the initial labor certification was filed. The Department of Labor has indicated that it is acceptable for a new alien beneficiary to be substituted upon the employer’s reply to a Notice of Findings (NOF)1, as long as the employer provides the additional information requested in the NOF and a new B Form is submitted for the qualified new beneficiary.
4. Changes to a Pending Application
Where there is a change in the sponsoring employer such as a merger, acquisition, spin-off or change of employer’s address, the Department of Labor (DOL) requests that the employer send written notification to the DOL. If the case is at the State Workforce Agency when written notification is submitted, then the changes will be made by the DOL when DOL reviews the case.
Increased Processing Time at the National Visa Center
The National Visa Center has changed some Immigrant Visa processing procedures thatwill affect Consular Processing applications submitted on or after October 1, 2002.Under the old system, the NVC would issue the Packet 3 after receiving notice of I-140approval from the INS. The Packet 3 contains the consulate case number and allows theapplicant to submit his or her documents for immigrant visa processing. The NVC thenreviews those documents and forwards them to the appropriate consulate so that aninterview can be set up.
Under the new system, the NVC issues a bill for the Consular Processing feesimmediately upon notice of I-140 approval from INS. The applicant or the attorney ofrecord must submit a cashier’s check or money order for the proper fees to the NVC.The Packet 3 will be issued 6-8 weeks after the NVC receives the proper payment. Thismeans that Consular Processing cases going through the National Visa Center will takean additional 6-8 weeks to complete.
1 An NOF, or Notice of Findings, is a request by the Labor Department for additional information on apending Labor Certification application. The Department of Labor will deny the application if theemployer does not provide the requested information.2 Once the Labor Certification application is approved, an employer may still substitute a new alienbeneficiary in the application. However, the substitution must be approved by a Regional INS office at theI-140 stage.
Ciudad Juarez Will Handle Some Third Country National Student Visa Applications
The U.S. Consulate in Ciudad Juarez, Mexico has recently adopted a new policy of notaccepting nonimmigrant visa applications from third country nationals. However, theconsulate has announced that it will accept nonimmigrant visa applications for certain F-1 students and residents of the consular district. Ciudad Juarez will issue F-1 studentvisas to non-Mexican nationals who can prove that they are continuing students in full-time degree programs and can demonstrate that their initial F-1 or B-2 "ProspectiveStudent" visa was issued in their home country. To obtain more information about thetypes of nonimmigrant visa applications processed by Ciudad Juarez, visit the consulatewebsite at http://usembassy.state.gov/ciudadjuarez/wwwhnivf.html.
Landed Immigrants of Canada Required to Obtain Passports and Visas to Enter U.S. on Nonimmigrant Status
Beginning December 16, 2002, all Landed Immigrants in Canada must possess a validpassport and nonimmigrant visa to enter the United States. U.S. Consulates in Canadaare issuing notices to outline procedures for obtaining the newly required visas. Theconsulates indicate that the requirement applies to citizens of the followingCommonwealth countries:
Swaziland New Zealand Grenada Tanzania Pakistan GuyanaAntigua and Tonga Papua New IndiaBarbuda Trinidad & Guinea IrelandAustralia Tobago St. Kitts & JamaicaBahamas Tuvalu Nevis KenyaBangladesh Uganda Seychelles KiribatiBarbados United Kingdom St. Lucia LesothoBelize (its colonies, St. Vincent & MalawiBotswana territories, and the Grenadines MalaysiaBrunei dependencies) Sierra Leone MaltaCameroon Vanuatu Singapore MauritiusCyprus Western Samoa Solomon Islands NamibiaDominica Zambia South Africa NauruGambia Zimbabwe Sri Lanka NigeriaGhana
Please note that Hong Kong nationals holding either British National Overseas or HongKong Special Administrative Region passports will require visas.
Effective immediately, U.S. Consular posts in Canada will accept nonimmigrantvisa applications by mail from Landed Immigrants residing in Canada who are 4citizens of the Commonwealth countries listed above. Visit www.state.gov or contactour office for more information about how to file a nonimmigrant visa application.Please note that if you are currently in the United States on nonimmigrant status and youare a Canadian Landed Immigrant and a national of one of the countries listed above,then the new visa requirements apply to you. If you intend to leave the U.S. before yourINS status expires, then you will not be readmitted to the country unless you obtain therequired visa. If you do not intend to leave the U.S. before your status expires, then youdo not need to bother with the visa. However, if you do intend to leave the U.S. andreturn on nonimmigrant status, then you will need to get the appropriate visa. You canobtain the visa by visiting a U.S. consulate abroad, or you can apply by mailimmediately.
When a petition is filed at an INS Regional Service Center on behalf of an alienbeneficiary, the INS generates a Receipt Notice. The Receipt Notice is sent either to theattorney of record or to the employing petitioner approximately 30 days after the petitionis filed. The Receipt Notice contains a 13-digit receipt number that can be plugged intoan INS-maintained website. The website generates case status information to the user.The INS website for case status is found at the following URL:https://egov.ins.usdoj.gov/graphics/cris/jsps/caseStat.jsp. You can also find this websiteby visiting www.ins.gov and clicking on “INS Case Status Service Online.”
