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Volume X, Issue 6 November 2016

 

In This Issue

1. USCIS Announces Addition of Eligible Countries for H-2A and H-2B Visa Programs
2. DOL Releases Round 17 H-2B FAQs to Address Worksite Definition, in Contradiction of BALCA Ruling
3. 
United States Unemployment Rate October 2016
4. PERM Processing Times as of November 19, 2016 

1. USCIS Announces Addition of Eligible Countries for H-2A and H-2B Visa Programs

The USCIS announced that it has added St. Vincent and the Grenadines to the list of countries eligible to particpiate in the H-2A and H-2B Visa programs for the coming year. A complete list of countries whose nationals are eligible to participate in the program, effective January 18, 2017, can be viewed at uscis.gov.

2. DOL Releases Round 17 H-2B FAQs to Address Worksite Definition, in Contradiction of BALCA Ruling

In the recently released Round 17 of the H-2B Interim Final Rule FAQs, the Department of Labor (DOL) addresses questions relating to worksite location and area of intended employment when applying for certification through the H-2B program.

The FAQs clarify that a worksite is "any location where the worker performs one or more duties of the job opportunity." The DOL offers the example of a landscaping company where workers meet at the employer's primary place of business to collect their equipment and then travel to other locations to perform landscaping duties. The primary place of business as well as each of the additional locations would be considered worksites because the employees perform one or more of their job duties at each site.

If work is to be performed at multiple locations, all worksites must be located within the same area of intended employment in order to be eligible for H-2B certification. For the purposes of an H-2B application, the area of intended employment is defined in the regulations at 
20 C.F.R. § 655.5 as "the geographic area within normal commuting distance of the place (worksite address) of the job opportunity for which the certification is sought."

The regulations acknowledge that they do not explicitly define what constitutes a normal commuting distance, as various factors can affect what may be considered a normal commute in different areas. The borders of a Metropolitan Statistical Area (MSA) may be used as a general guide for determining normal commuting distance, but even this is not an absolute parameter. The regulations state: "If the place of intended employment is within a Metropolitan Statistical Area (MSA), including a multistate MSA, any place within the MSA is deemed to be within normal commuting distance of the place of intended employment." And yet, "
a location outside of an MSA may be within normal commuting distance of a location that is inside (e.g., near the border of) the MSA."

However the normal commuting distance is determined, it is possible for an area of intended employment to contain multiple worksites, as long as those worksites are within normal commuting distance of each other. The area of intended employment is used as the basis for determining prevailing wage and determining the availability of qualified workers. Therefore the regulations do not permit a Certifying Officer (CO) to certify an application with multiple worksites where the worksites fall outside of a single area of intended employment.

For job opportunities that require work at locations outside of the same area of intended employment, employers must generally file a separate application for each area. Exceptions are permitted in cases where occasional travel to other worksites may be required for short duration and at the employer's expense, but not as a normal course of duty. In such cases, the application may be filed using the primary worksite location. The FAQ highlights two examples of job opportunities that would not be eligible for H-2B certification due to the extensive travel inherent in the positions. Itinerant tour guides who lead trips across multiple cities, and tractor trailer truck drivers who travel across the United States, would not be eligible for H-2B certification because the positions require the job duties to be performed in multiple locations outside of a single area of intended employment.

The DOL asserts that the definition of "worksite" set forth in this round of FAQs is the "authoritative interpretation" for the purposes of H-2B regulations. A footnote to the FAQs expressly states that this definition is a rejection of the decisions in two Board of Alien Labor Certification Appeals (BALCA) cases earlier this year, in which the definition of "worksite" under H-1B regulations was applied to H-2B applications. In both of those cases, GT Trans, Inc. (April 2016) and Brook Ledge, Inc. (May 2016), the positions for which certification was sought were for truck drivers and involved extensive travel as part of the regular job duties. In the absence of any existing guidance under the H-2B regulations, the Board determined that a truck driver's "delivery locations are not necessarily worksites" (Brook Ledge, Inc.) and therefore the employer's primary location may suffice as the area of intended employment.

This round of FAQs raises the question of whether the DOL can effectively overrule BALCA through the release of an FAQ. We expect to see the issue further debated before BALCA until the new H-2B regulations are finalized.

3. United States Unemployment Rate October 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 decreased from 5% back to 4.9% in October.

4. PERM Processing Times as of November 19, 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 2016
Audits April 2016
Reconsideration Requests to the CO October 2016
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.

About USADWEB
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 6 November 2016

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The USADNEWS Blast is the eNewsletter from USADWEB, LLC, providing updates on immigration ad placement services. This bulletin is not sent unsolicited. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of USADWEB's services.
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