DOL Has Major Problems with iCert System

One of the first steps that must be completed for an employer to file for an H-2B visa is the submission of a labor certification application with the U.S. Department of Labor (DOL). Filers utilize the online iCert system and are generally able to file at midnight on January 1. The H-2B program is statutorily limited to 66,000 visas annually with 33,000 allocated to each half of the fiscal year. H-2B applications are date and time stamped to establish the order of submission because of the demand for the program.

However, this year, when filers attempted to submit their applications, they received error or timed out messages and were unable to complete the application process.

DOL initially announced that it was experiencing a “major service interruption” and was taking down the iCert system altogether. Apparently, it received so many applications that the system crashed. The iCert takedown impacted other programs, as well, such as H-2A and PERM.

On January 2, 2019, DOL provided an update, noting that it had received requests for certification for over 97,800 workers, while only 33,000 visas are statutorily available. The huge uptick in applications crashed the system, which was not reopened until Monday, January 7. DOL stated that there were 22,900 server login attempts on January 1, 2019, versus 721 attempts in the same period on January 1, 2018.

Interestingly, as part of its fix, DOL instituted a “CAPTCHA” to avoid software programs from filing applications at a rate faster than iCert could manage.

The iCert system was reopened on January 7 at 1 pm CST.

How Does a Government Shutdown Impact Immigration?

As of the date of publication, President Trump has refused to sign a bill that would fund the government because no bill has included funding for his desired border wall. As a result, many government agencies have been forced to shut down or furlough workers due to a lack of funding.

Depending on which agency is involved in your immigration matter, the shutdown may impact you in a different ways.

USCIS: USCIS is a fee-funded agency of the U.S. Department of Homeland Security. As a result, it generally continues to run during a shutdown. However, some programs under USCIS receive government-appropriated funds, such as E-verify, EB-5s, Conrad 30 J-1 physicians, and non-minister religious workers, and they may be suspended or otherwise impacted.

Department of State: The portion of DOS that issues visas and passports is also fee-funded, so it should not be impacted by the shutdown in any major way. However, if funding becomes an issue, consulates are likely to only process emergency petitions.

CBP: Ports of entry are open, but CBP processing of applications at the border may be impacted.

ICE: ICE Enforcement and removal operations are still functioning, as is the Student and Exchange Visitor Program.

EOIR: The detained docket is still being held by EOIR, but the non-detained docket will be reset for a later date. Immigration courts with detained dockets are open to receive all filings, but will only process those for the detained docket. If a court has no detained docket, though, it will not be open at all.

If you have questions about whether or not your case may be affected by the shutdown, please reach out to an immigration attorney.

Why Can’t I Get a Driver’s License?

Once common complaint from many clients is their inability to get a driver’s license while certain petitions are pending with USCIS. Each state’s DMV is a little different.

In Alabama, for instance, you may not even need an Alabama driver’s license if you have a valid foreign driver’s license. However, if you need an Alabama license, the DMV will generally not issue one unless you are in status or filed for an extension or renewal while still in status. If your period of authorized stay is soon to expire, the DMV will often only grant your license for the time period of your authorized stay. This often creates a problem when clients are in a period of authorized stay due to the filing of a petition with USCIS, but their period of stay on their original visa has expired. Even though certain petitions can be filed with USCIS when you are out of status, and which place you in a temporary period of authorized stay, getting a license can be nearly impossible until you actually receive your green card or other benefit for which you petitioned.

Unfortunately, there’s no perfect solution to this problem if you encounter it. The best idea is to simply plan ahead, and if possible, maintain your underlying status while any adjustments of status are pending. Obviously, that is not always possible or practical, so have a plan in place post-filing for dealing with this inconvenience.

H-2B Cap Reached for the First Half of 2019 Fiscal Year

USCIS has announced that it has received more petitions for H-2B beneficiaries than there are visa available for the first half of fiscal year 2019. As a result, any petitions received after December 6 will be rejected if they request an employment start date before April 1, 2019.

Congress has made available 66,000 H-2B visas each year, with 33,000 reserved for each half of the fiscal year. Any unused visas from the first half of the fiscal year would, in theory, roll into those available for the second half.

Federal Judge Strikes Down Trump Asylum Policy on Domestic / Gang Violence

On Wednesday, December 19, 2018, afederal judge struck down a Trump Administration policy, implemented under former Attorney General Jeff Sessions, that made it nearly impossible for victims of domestic violence or gang violence from qualifying for asylum protections.

Asylum law requires those claiming asylum to show that the government of their home country either was perpetrating the persecution or unwilling to prevent a third party from persecuting its victims. Sessions’ policy essentially required that the asylum seeker also establish that the government condoned the third party actions – a higher standard than should be applied under current law.

Judge Emmet Sullivan’s opinion noted that the policy was unlawful, as “it is the will of Congress – not the whims of the Executive – that determines the standard for expedited removal.”

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