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Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice Group.
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It’s April 20, and this is your BAL Immigration Report.
“The PERM process can be time-critical in certain circumstances with certain employees. The obvious example is that the employee cannot become a permanent resident and has to wait that much longer to get their process going.”
—Stephen Parker, BAL Senior Associate
The White House has announced a plan to extend Medicaid and Affordable Care Act coverage to DACA recipients. A proposed rule is expected by the end of April. If finalized, it would make DACA recipients eligible for these healthcare options for the first time. The Biden administration’s attempt to “preserve and fortify” DACA through federal regulation is currently being challenged in the Fifth Circuit Court of Appeals.
USCIS has extended the temporary suspension of biometrics requirements for certain Form I-539 applicants. The suspension will now last through Sept. 30 and applies to individuals filing extension of stay or change of status to H-4, L-2 or E nonimmigrant status. USCIS plans to establish a permanent biometrics exemption for all Form I-539 applicants in the near future, though the agency reiterated that it retains the right to request biometrics on a case-by-case spaces.
A conversation with BAL Senior Associate Stephen Parker: delays in the issuance of prevailing wage determinations.
BAL Immigration Report: Last month, Stephen Parker was one of five BAL attorneys to speak at the American Immigration Lawyers Association’s Texas Chapter Spring Conference. Parker, a senior associate in the firm’s Dallas headquarters, spoke on the topics of prevailing wage, PERM and wage transparency laws. Parker joined the BAL Immigration Report for a follow-up conversation. We asked him why the issuance of prevailing wage determinations has been so delayed.
Parker: The prevailing wage determination, or PWD, is a required precursor to the PERM filing. Basically, the employer asks the Department of Labor what the prevailing wage of this occupation in this location is based on surveys. And they’re mapped to particular specific occupation codes, or SOC codes. The SOC codes that the DOL was using are all the way back from 2010, 2011-12, that time frame, and it hadn’t been updated for several years. In 2018, new SOC codes were released because occupations are constantly changing — there’s new occupations, there’s new data that the Department of Labor has to consider.
BAL: The introduction of the new SOC codes was postponed until July 2022 because of COVID-19. Parker says this change likely exacerbated PWD delays.
Parker: The analysts had to kind of start from scratch with each prevailing wage that they were doing. This took a significantly greater amount of time to do each prevailing wage. It was like starting over or reinventing the wheel, so to speak.
BAL: PWD wait times for PERM cases jumped from about five or six months in June 2022 to about 11 months at the end of the year, according to Department of Labor data. We asked Parker about the impact of these delays to employers, employees and their families.
Parker: The PERM process can be time-critical in certain circumstances with certain employees. The obvious example is that the employee cannot become a permanent resident and has to wait that much longer to get their process going. A lot of the employees hold H-1B status. H-1B status allows an employee to be in the country temporarily up to six years, with the notable exception that if they are far enough along in the green card process, their H-1B is eligible for continued extension until such time as they actually become a permanent resident or green card holder. But the key is that the PERM has to be filed. Of course, we can’t file a PERM unless we can get the prevailing wage determination back. So as H-1B deadlines were approaching, employers were unable to file their PERMs because they did not have prevailing wages because of these significant delays in the issuance of the prevailing wage.
The second example is that children of H-1B visa holders are protected under the Child Status Protection Act if the principal H-1B holder is far enough along in the green card process again. And if they are not, then the children might age out of the process and be unable to complete the green card process with their family. That’s a rather dreadful result for dependents that are in the United States.
BAL: PWD delays also may make PERM recruitment more difficult in states with wage transparency laws. As we previously discussed on the BAL Immigration Report, these laws require employers to include salary ranges in job postings. In order to comply with wage transparency laws in the PERM context, employers often wait for a prevailing wage determination to ensure their posted pay range is not too low.
Parker: The main issue here is with the delay on a prevailing wage. The employer doesn’t know what salary they have to post in their recruitment — so they are, in fact, stuck waiting for the prevailing wage to come back before they can initiate recruitment. That is the conservative, wisest advice — because if they don’t wait, then they might have to redo all of the recruitment and that can be very expensive.
BAL: Parker says PWD processing times have improved a bit but are still complicating recruitment and forcing employers to consider starting the PERM process earlier for H-1B employees.
Parker: As of the recording here in April of 2023, we are seeing prevailing wages coming back that were filed in October, so that’s about six months. Even six months’ delay on a prevailing wage is not really acceptable. It’s just too long.
BAL: For more information on this topic, find a Q&A with Parker at BAL.com/BAL-perspectives.
Canada’s largest public sector union, Public Service Alliance of Canada, began a labor strike on April 19, causing disruptions to many government services. The union has yet to say how long the strike will last. Individuals traveling to the country should expect longer wait times at all ports of entry. Immigration and passport services will also be impacted; individuals using these services should expect processing delays.
In the Philippines, authorities have expanded the eTravel system, which registers individuals as they enter or exit the country. All air and sea travelers, including crew members, must register through a government website. Paper-based arrival and departure cards will no longer be accepted beginning May 1. Inbound travelers must register within 72 hours of their scheduled arrival time. Outbound travelers must register within 72 hours but no later than three hours before their scheduled departure time. The new system is designed to streamline entry and exit procedures and decrease immigration processing times.
As the Islamic holy month of Ramadan comes to an end, countries across the Middle East, North Africa and parts of Asia will close government offices for the holiday of Eid al-Fitr. The length of the closures vary by country. Processing delays are expected for visas and work permits, among other requests. Employers may need to adjust their timelines and should submit time-sensitive filings before government closures to avoid possible delays.
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