From June 30th to July 3rd, The American Immigration Lawyer’s Association held their annual conference in Washington D.C. Here are some of the tidbits picked up for our readers.

More Efficiency and Sharing between agencies

We are being asked by CIS to submit the majority of our data online, including the I-Cert, DS-160, and E filings. However, we have not observed a correspondingly higher level of efficiency. We are also keying in high amounts of data with CIS, The Department of Labor for H-1b visas. We include a duplicate to Kentucky Consular Center for scanning, which completes their own analysis, and then the visa goes on to the State Department, where it is checked by the consulate. We were wondering if we could submit our data more efficiently, and if the government would share information within the agencies, in order to cut down on processing time.

CIS explained that the process will be expedited as soon as the new case management system for the second quarter of fiscal year 2011 is underway. At this point, the customer will be able to submit forms electronically or on paper. CIS is committed to giving the customer fully electronic processing so the customer will not have to repeat data. The customer will be able to update and can monitor the status of pending cases. This is a start to a more efficient system.

What we can learn from DOL enforcement actions on LCA’s

There have been greater numbers of investigations throughout the US, since the DOL’s investigative authority increased in 2004. For example, there were 183 investigations in 2008. There is increased scrutiny of people working offsite, so if you have employees moving around regularly, it is best to keep tabs on them. Especially in terms of H-1b’s, it is important to be aware of the Short Term Placement Rule. If an employee moves up to 30 days in the calendar year, nothing need be done for the H-1b. However, if someone is moving regularly, you need to be more careful.

Public Access Files for H-1b

Employers should retain the PAF for at least one year after the withdrawal of the LCA and the LCA expiration. If the person was never employed by the employer or if the person never worked, in other words if there was no employment, the DOL will not go after the company.

The employer must make an official decision as to when the employee will start working. Then after 30 days, the company must either terminate the H-1b or start paying the employee.

The DOL has released a new advisory stating that the preparation of the LCA is a business expense of the employer, and the back wage calculation will take this expense into consideration during DOL audits. Additionally, it is best to direct the DOL to the ETA for the prevailing wage determination. The worst case scenario in an H-1b audit is debarment.

July 2010