Prior to January 20, 2009, the most recent information regarding the Department of Labor’s (“DOL”) proposed changes to the LCA e-filing system (Form ETA 9035) indicated that a release of the new form and e-file format was expected late this month or early February. An exact date was not formally announced nor has a final version of the new form been published in the Federal Register.
Last Tuesday, January 20, 2009, President Obama’s Chief of Staff, Rahm Emanuel, issued a memorandum instructing federal agency heads to halt the publishing of all proposed/final regulations to the Federal Register unless and until such regulations have been reviewed and approved by a department or agency head appointed or designated by President Obama after noon on January 20, 2009. The memorandum also directs agency heads to withdraw all proposed or final regulations that have not been published in the Federal Register, and encourages agency heads to consider extending for sixty days the effective dates of regulations published but not yet effective. There is no word yet on whether such delays will affect the rollout of the new Form ETA 9035.
Regardless of the date the new Form ETA 9035 will become effective, the American Immigration Lawyers Association (“AILA”) and the DOL have already reported that LCA e-filing, after the implementation of the new form, will no longer produce instantaneous Labor Certifications as is the norm with the current system. In fact, the AILA Department of Labor Liaison reports that Labor Certifications will take up to one week to be processed under the new system. Assuming such information is accurate, “rush” H-1B petitions may no longer be possible because of the potential for a one week waiting period under the new system.
We will post the link to the final version of the Form ETA 9035, with additional commentary, immediately upon its release. In the meantime, if you have any questions with regard to your Company’s obligations in connection with the new Form ETA-9035, or how the potential for delay may affect your ability to hire H-1B transfers, please feel free to contact us.
(Please note that Meyner and Landis LLP’s Immigration Law Group does not charge its corporate and business clients additional fees to prepare and file a “rushed” application or petition with CIS.)