AILA Conference 2022, Day 3: Department of Labor Open Forum

This is probably the most important session of this conference – the Department of Labor. This is going to impact all H1B applications and EB2 EB3 applications in the very near future, probably for the next 10 to 15 years. Let’s get to it.

Hi everyone, my name is Joseph. I’m the managing partner here at Tsang & Associates, where we solve legal problems with creative solutions. So the Department of Labor is critically involved with the whole immigration process if you want to get a green card through work. If you’re a non-immigrant or you just graduated college or with a master’s degree and you want to work in the US, H1B applications and various forms of other non-immigrant visas rely on the wage determination by the Department of Labor. And if you want a green card, you’ll need to go through the PERM process. In both of these instances, as you can imagine, COVID has completely shut down the Department of Labor in a lot of different ways. And so they are on a hiring spree to try to fix things. Last year, you can check out this video over here, we talked about what they were trying to fix. Well, this year we’re still trying to fix the same things. But instead of focusing on the details, let’s get to the most important updates.

First, and most importantly, we are going to get the update to the SOC code that we have been waiting for. Last year they said they were going to do it this year. People were skeptical whether or not they were actually going to do it. But they did say that they are going to do it this year. Now, why is this so important? Because the last time these codes were updated was in 2010. Think about how many new jobs have been invented just in the past few years, let alone since 2010. So for the last 10 years, anytime anybody wants to apply for a job in the US and they’re trying to go through the wage determination process, if there’s no job that directly matches the code, then we just kind of have to make it work. We have to argue that this job position is very similar to that other job position and then we are explaining why. This cuts in a lot of ways.

If you have a job that’s in the new code system, there’s a high chance the employer is going to have to pay you a lot more, which means the employer might not hire you anymore if they have to pay significantly more. Because in the past, maybe you were pocketed under this other category that had a very general job description and very general job duty, and the wage was a lot lower. Well, now it’s much more specific, and it could be a lot higher based on the survey they conducted. 

The second thing is if you’re filing for wage determination after the new codes come out, and you are still not part of the new code system, well then the burden is extra on you to prove that your job is kind of like everybody else’s, but it just wasn’t categorized. That’s going to be a much more difficult argument to make because they just revamped it.

The third thing is you need to prepare your case really well from the beginning. How you explain the job duty has to match that code because you can’t do it after the fact. Right now, a lot of times, and I see a lot of people do this, they just prepare it, send it in, and whatever code comes back like, ‘Well, it’s close enough,’ you match it and you send it in because the codes are so outdated. Whatever you explain will just match that code. But in the future, whatever you explain, if you match the wrong code, well, then you have to do the whole thing again.

And now that leads us to the bad news. The processing time is still seven months, and even longer. It’s actually worse now than before COVID. Before COVID, the processing time was three to four months. Now, this process alone increased to about seven to eight months, and that’s without an audit. If you have an audit, it could be 12 months. Iit could be 15 months. And then you start the green card process, which could take another year and a half. So the delay in the wage determination process, to the PERM process, to the I-485 immigration process, is making a lot of people have to wait years more before they can finally get the green card. I remember the day when you start a case and your client gets a green card and all of that happened within nine months. Now, sometimes we’re seeing three to four years.

So those are some of the bad news. Now let’s talk about some good news.

The Department of Labor is not going to issue any new memo regarding work from home. This is good news because the Department of Labor already has memos and FAQs talking about telecommuting. Telecommuting and working remotely has always been a thing, and they already had policies on how to adjudicate for that. Yes, COVID has completely transformed the work experience. Yes, many more people are working remote now, so it’s not really telecommuting when it’s a small percentage of the population. But as of now, they’re not issuing any new regulatory memos and changes on what you need to do, new forms you need to fill out because anytime you do a new policy change, a new implementation, it just screws up everything.

The only issue is that, of course, there are bad actors who are trying to game the system. If a company has two locations, say in Nebraska and in San Francisco, of course, they’re going to say all the foreigners are working out of the Nebraska center because it’s a lot cheaper over there, and the wage determination is going to be a lot lower, even though, out of the whole year, most of the time, they’re traveling to New York or San Francisco to work. But they’re not being paid the salaries determined at that zip code. So the key issue is, are you traveling for work purposes, or do you actually permanently work at a particular location? Even though the whole world is now traveling, how do you differentiate? That’s the gray area that all these lawyers are trying to figure out.

But at least for now, no major updates, which is a good thing. If you’re interested in the nuts and bolts and all the little techniques on how to do these types of cases, definitely download and watch the entire session on Agora. Alright, see you next session. Take care. Bye.