May 17, 2024 - Weekly Immigration News Update

Posted by Keshab R. Seadie | May 17, 2024 | 0 Comments

Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

USCIS Fee Rule Update and FAQ for Employment-Based Petitioners

The USCIS has updated its Frequently Asked Questions on the USCIS Fee Rule to aid certain employment-based petitioners in understanding how to submit the correct fees required for their filings. To avoid rejections at intake for incorrect fees, petitioners must ensure that the fee submitted matches the requisite amount. If the submitted fee is incorrect-even if it is an overpayment-the form will be rejected.

Key guidance includes:

  • Form I-129, Petition for a Nonimmigrant Worker: Verify nonprofit status or small employer status based on specific questions in the form to determine the correct fee.
  • Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker: Similar checks are required to confirm the appropriate fee based on nonprofit status or the number of full-time equivalent employees.
  • Form I-140, Immigrant Petition for Alien Workers: Confirmation of nonprofit status or small employer status is crucial to ensure the submission of the correct fee amount.

Petitioners are advised to refer to the detailed instructions provided on respective forms and the USCIS Filing Fees page to ensure compliance with regular filing fee as well as the new Asylum fee.

Centralized Intake Processing of VAWA Self-Petitions at the Nebraska Service Center

Effective April 1, 2024, the intake process for Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, particularly under the Violence Against Women Act (VAWA) for self-petitioning abused spouses, children, and parents, has been centralized at the Nebraska Service Center. This procedural update streamlines the previous process where filings, initially received and receipted at Nebraska, were transferred to the Vermont Service Center for completion of intake processing.

This efficiency enhancement eliminates the need for transfer notices to VAWA self-petitioners, and does not affect the filing location or the adjudication of Form I-360 for VAWA self-petitioners. USCIS officers with specialized VAWA training from the Humanitarian, Adjustment, Removing Conditions, and Travel Documents Service Center will continue to handle these cases.

Filing PERM (Labor Certification) Using the Same Employer Experience

Successfully filing a PERM (Program Electronic Review Management) labor certification using experience gained with the same employer involves a detailed and precise approach to demonstrate that the new role is indeed a bona fide position requiring more advanced skills or responsibilities than those the foreign national held in previous roles within the company. Here's a step-by-step guide to enhance the chances of approval:

  1. Job Analysis and Documentation

    Define the New Position Clearly: Ensure that the new position's duties and requirements are clearly defined and documented, highlighting how they are different and more complex than the previous position(s) held by the employee within the company.

    Document Career Progression: Provide a clear career progression path showing how the employee has moved up within the organization and how their skills have advanced over time.

  2. Prevailing Wage Determination (PWD)

    Request a PWD from the DOL: This will determine the appropriate wage for the position based on the job requirements and geographical location. The offered wage must meet or exceed this prevailing wage.

  3. Recruitment Process

    Conduct Rigorous Recruitment: Conduct recruitment as required by the DOL to test the labor market. This includes placing job ads in local newspapers, online job boards, and industry-specific publications. Keep detailed records of all recruitment efforts and the reasons for rejection of U.S. worker applicants.

    Document Non-Qualifying Applicants: It's important to maintain records of why each U.S. worker who applied was not qualified for the position, with a focus on legitimate, non-discriminatory reasons based on the requirements for the job.

  4. Application Preparation and Review

    Prepare ETA Form 9089: Fill out the ETA Form 9089 meticulously. Ensure that all information is consistent with previous filings (if any) and accurately reflects the job duties, requirements, and recruitment efforts.

    Review for Consistency: Double-check that the information about the previous positions held by the employee within the company clearly supports a narrative of progression and that these roles are distinctly different from the new position in terms of responsibilities and requirements.

  5. Filing and Response to Potential Audits

    File the ETA Form 9089: Once the form is prepared and reviewed for accuracy and completeness, submit it to the DOL.

    Be Prepared for Audit: There is a higher likelihood of audit when experience with the same employer is used. Keep all documentation readily available and organized for quick access in case the DOL requests further evidence.
  6. Handling Audits and Requests for Information

    Respond Promptly to Audits: If audited, provide the DOL with all requested documentation, including recruitment reports, rejection reasons for U.S. workers, and evidence of the employee's qualifications and career progression within the company.

    Legal and HR Coordination: Work closely with your legal counsel and human resources department to ensure all responses are accurate and comply with legal standards.

    Best Practices

    Ensure the Position Is Genuine: The DOL must be convinced that the job is not tailored to the qualifications of the foreign national and is a legitimate opening that could not be filled by the U.S. labor pool.

    Transparency and Documentation: Maintain transparency in your recruitment process and document every step thoroughly to avoid any implications of favoritism or pre-selection.

    By following these steps and focusing on thorough documentation and clear demonstration of job progression and differentiation, you can increase the likelihood of a successful PERM certification using experience gained with the same employer.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.


Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.

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