Volume X, Issue 1 January/February 2016

In This Issue
1. Check for Updated USCIS Forms Before Filing
2. Interim Final Rule Affects H-2B Job Order Processing
3. Successor in Interest May Use H-2A Certification, FAQ Clarifies
4. United States Unemployment Rate February 2016
5. PERM Processing Times as of February 1, 2016

Clients' Comments Corner:
See what our clients are saying about us!

1. Check for Updated USCIS Forms Before Filing

The U.S. Citizenship and Immigration Services (USCIS) may deny applications that are submitted using outdated forms. For your convenience, you can link to a list of all USCIS form updates in the Links section at USADWEB.com. Many forms have been updated since the end of 2015. The USCIS website notes where previous versions of a form will be accepted.

2. Interim Final Rule Affects H-2B Job Order Processing

The changes to the H-2B regulations that went into effect in the Interim Final Rule on April 29, 2015,  have affected how job orders are processed with the local State Workforce Agencies (SWAs). The regulations now require the following:

  • Employer must submit the job order to the SWA at the same time they submit the application for temporary employment certification, and submit a copy of the job order to the Chicago National Processing Center (NPC), no more than 90 calendar days and no fewer than 75 calendar days before the employer's date of need. The job order must remain open until 21 days before the date of need.
  • Recruitment must be conducted after the application is accepted for processing. Recruitment must be conducted within 14 days from date of the Notice of Acceptance.
  • Applicants must be directed to apply at the nearest SWA office, as well as directly to the employer.

Many SWAs have amended their procedures for how employers must submit a job order related to an H-2B application, in order to comply with the new regulations. For instance, some states still allow submission through their online system, whereas other states now require the employer to complete and submit a separate form by email. It is important to confirm with each state what their specific submission requirements are. Once the SWA has received the job order, they will coordinate with the NPC in Chicago and await approval from the national office. The employer may not begin recruitment until the NPC approves the application.

Because of the influx of job orders being submitted to one centralized office, the NPC is currently dealing with a backlog of applications that are pending approval. The Department of Labor (DOL) also announced in January that it has seen a 79% increase in H-2B applications from those submitted during the previous filing season. According to the Office of Foreign Labor Certification (OFLC), “The simultaneous impact of the requirement to change procedures as the result of the 2016 DOL Appropriations Act, and the major increase in the number of applications being filed, has resulted in longer processing times in the H-2B program.”

3. Successor in Interest May Use H-2A Certification, FAQ Clarifies

The Department of Labor (DOL) released a new FAQ in January that clarifies the question of whether a “successor in interest” may use an existing H-2A certification when a new employer takes ownership due to a corporate restructuring or sale of the business. The DOL explained that a successor in interest may use the existing certification “provided that it assumes all obligations, liabilities, and undertakings arising under the certification.” The FAQ points to the fact that the definition of “successor in interest” is included in the H-2A regulations at 20 C.F.R. § 655.100(b), as an indication that the DOL considered successorship in its original design of the program. Furthermore, the regulations permit the debarment of employers who are successors to a previously debarred employer.

An employer must notify the Chicago National Processing Center (NPC) that they are a successor in interest by submitting a sworn written statement identifying the certification by the ETA case number and describing the business situation that results in the change of ownership. The statement must also list the successor in interest’s name and contact information, as well as confirm they will assume “all obligations, liabilities, and undertakings arising under the certification.” The employer should keep a copy of this sworn statement for their records, in accordance with the document retention requirements at 20 C.F.R. § 655.167.

The FAQ states that “the following factors may be considered in determining whether an employer is a successor in interest”:

(i) substantial continuity of the same business operations;

(ii) use of the same facilities;

(iii) continuity of the work force;

(iv) similarity of jobs and working conditions;

(v) similarity of supervisory personnel;

(vi) whether the former management or owner retains a direct or indirect interest in the new enterprise;

(vii) similarity in machinery, equipment, and production methods;

(viii) similarity of products and services; and

(ix) the ability of the predecessor to provide relief.

The full FAQ can be found here.

4. United States Unemployment Rate February 2016

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The unemployment rate fell slightly below 5% to 4.9% in January and remained unchanged at 4.9 percent in February.

5. PERM Processing Times as of February 1, 2016

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews August 2015
Audits January 2015
Reconsideration Requests to the CO September 2015
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

Clients' Comments Corner

USADWEB has provided consistently excellent service to our firm and is a critical partner in helping us manage the labor certification process to serve our clients.

(Seattle, WA)


USADWEB, LLC. is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For over a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume X, Issue 1 January/February 2016

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