BALCA Says Attempts to Explain NOF Deficiencies Are Almost Certainly Destined to Fail

October 31, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Director of Sales.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application for multiple reasons. Most importantly, the Employer did not include their name on their Notice of Filing (NOF) in violation of PERM regulation 656.10(d). PERM regulation 656.17 (f)(1) mandates that the advertisements “name the employer.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the NOF was acceptable regardless of the omission of their name. The Employer argued that public access to its building is limited and it is very plausible that only the company’s three employees would have access to the filing. With its request, the Employer submitted multiple documents including their articles of incorporation; federal tax return; photographs of the facility & bulletin posting area; certifications of accreditation; Florida Resale Certificate for Sales Tax; lease agreements; Google Map print-outs; and Miami.Dade.gov Property Information. With its Reconsideration Request, the Employer relied upon the Stone Tech decision.

Upon reexamining the evidence, the CO delivered a second denial and forwarded the case to BALCA for examination.

After BALCA’s examination of the case, BALCA sided with the CO. The Board thought the Employer clearly violated the PERM regulations by failing to list its name in the NOF. BALCA believed the sizeable documentation from the Employer could not assist the motion for reconsideration because none of the extensive documentation provided could be used to support a motion for reconsideration under the current regulations. Furthermore, the BALCA panel stated that the regulations require that “the NOF must comply with the regulatory content requirements.” It was fatal to the Employer’s application to have failed to include its name on the NOF.

H-2B Cap Count UPDATE – 10/17/14

October 30, 2014

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (10/17/14); 8,670 beneficiaries have been approved and 1,146 are pending for a total of 9,816.

The H-2B cap limit for second half of FY 2015 (April 1 - September 30) is 33,000. As of the last count (10/17/14); 0 beneficiaries have been approved and 0 are pending for a total of 0.

For further details read, “Cap Count for H-2B Nonimmigrants


Source of Information:

- USCIS.gov (10/21/14) Web Page

- AILA InfoNet Doc. No. 14101744 (posted 10/22/14)

DACA – Updated Frequently Asked Questions

October 29, 2014

On October 17, 2014 the USCIS updated their Deferred Action for Childhood Arrivals (DACA) frequently asked questions (FAQs). Reviewing these frequently asked questions is a great way to get a better understanding of the DACA process.

These FAQs cover:
- What is Deferred Action for Childhood Arrivals?
- DACA Process
- Background Checks
- After USCIS Makes a Decision
- Initial Requests for DACA
- Travel
- Criminal Convictions
- Miscellaneous

Earlier this month, USCIS also posted a new video on DACA entitled, “Consideration of Deferred Action for Childhood Arrivals - How to Apply or Renew DACA”.

DACA is a memorandum signed by President Obama directing U.S. Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and U.S. Immigration and Customs Enforcement (ICE) to practice prosecutorial discretion towards some individuals who immigrated to the United States as children and are currently in this country illegally. They are also eligible for work authorization, but deferred action is not a lawful status nor does it lead to a lawful permanent status. The eligibility requirements for who can apply for DACA are very specific and can be reviewed on the USCIS website at: Consideration of Deferred Action for Childhood Arrivals (DACA).


Source of Information:

USCIS.gov, 10/17/14, FAQs:
DACA – FAQs updated 10/17/14

USCIS.gov, 10/17/14, Video:
Consideration of Deferred Action for Childhood Arrivals - How to Apply or Renew DACA

Related Links:

USCIS.gov, 7/21/14, Web Page:
Renew Your DACA

USCIS.gov, 8/15/14, Web Page:
Consideration of Deferred Action for Childhood Arrivals (DACA)

Impact of New Americans - Florida, Georgia, Hawaii & Idaho

October 28, 2014

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2014)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on four states at a time. This week we will highlight; Florida, Georgia, Hawaii and Idaho.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

Florida
Georgia
Hawaii
Idaho


Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

Administrative Appeals Office (AAO) Processing Times - 10/1/14

October 27, 2014

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of 10/1/14.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The processing time for an I-129 H-1B Appeal is current; for an I-129 L1 Appeal is current. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is current; for an I-140 EB3 Appeal for a Skilled or Professional Worker is current.

**Most other cases are within USCIS's processing time goal of 6 months or less.


Source of Information:

USCIS.gov, (10/6/14), AAO Processing Times

MVP LAW GROUP – Immigration Q&A Forum, Friday, October 24, 2014

October 24, 2014

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Employment Based Immigration
I am currently awaiting my green card. My spouse’s Green card was approved, yet my case is still pending and I am the primary applicant. Both filed at the same time. My wife’s case was filed as dependent, mine under EB2, Employment based. When do you think I will receive my green card?

Answer #1
It is possible that your case has just been overlooked. Contact the USCIS to determine the expected time frame of when the USCIS expects to make a decision on the case. Try contacting the USCIS at 1-800-375-5283 to initiate a Service Request. If you require assistance, please contact our office to set up a consultation.


Question #2 – H-1B Nonimmigrant Work Visa
My Long pending H1B visa petition was returned by Chennai Visa consulate. I am a retired ex-serviceman (Indian Navy) and my petition for H1B visa for "Software Programmer" was approved by USCIS in June 2013. However, the petition was returned to USCIS by Chennai Consulate in November 2013. Until today, I have not received any confirmation from USCIS for receipt of returned petition. Is my past military service to do anything with this extraordinary delay? Please note that I have B1 visa.

Answer #2
Are you still in contact with your sponsoring employer? Have you checked with them to see if they have received a Notice of Intent to Revoke from the USCIS? Did your employer have an Attorney? Contact our office to schedule a consultation.


Question #3 - H-1B Nonimmigrant Work Visa
I hold an H4 visa and I am currently looking for a consultant position from a U.S. employer that sponsors H1B visas holders. I want an H1B visa. Is there a cut-off date for submission of an H-1B application for the year 2014 and 2015?

Answer #3
If you have never before been in H-1B visa status, then YES, any H1B petition filed on your behalf will be subject to the annual quota. Each fiscal year, beginning on April 1, 65,000 visas are available for those who qualify for ‘Specialty Occupations.’ An additional 20,000 are reserved exclusively for those who graduate from U.S. Universities with Master’s degrees. In years past, the annual quota was filled within a week of being open. Although you are able to submit your H-1B petition as of April 1, if selected and approved, authorized H-1B employment will not begin until October 1 of the same year. The annual quota for years 2014 and 2015 has been reached. We are now getting ready for the FY2016 H1B Cap, opening April 1, 2015.


Question # 4 – Advance Parole/Travel
My parents came to US on B1/B2 in March 2014. In July (after 3 Months), we filed concurrent applications for green cards. Their I-94 expired on 09/17/2014. Their AP has been approved now while I-485 and I-130 are still processing. Fingerprinting is also done. Is it safe for them to visit India for 2 Weeks to attend a wedding?

Answer #4
Although they have been granted the Advance Parole document providing them permission to travel outside of the U.S. while their I-130 and I-485 remain pending, it has been my practice to advice clients not to travel under these circumstances unless it is absolutely necessary. Please contact our office to further discuss the potential issues involved with traveling abroad while the Immigrant Petition and AOS application remain pending.


Question #5 – Immigrant Petition for Alien Worker, Form I-140
I got an approved H-1B visa in September 2012. When can I apply for I-140? Do I have to wait until H-1B expires after 2 years or I can apply right now?

Answer #5
Your employer would need to initiate the Green Card process on your behalf, which starts with the filing of the Labor Application with the Department of Labor after sufficient recruitment has been conducted. You should speak with your employer concerning whether employment based green card sponsorship is available within your company. As far as timing is concerned, it is recommended that you begin the Green Card process well before your 5th /6th year of H-1B status in order to take advantage of the H-1B extensions available under AC21 Law due to the unavailability of visa numbers.


Question #6 – F1, Student Status
My mother sponsored an application to adjust status on my behalf, but it was rejected by the USCIS. I am currently in F1 status, can I still apply for OPT even after having applied for I-485 and been denied?

Answer #6
Speak with your Designated School Official (DSO).


Question #7 - Immigrant Petition for Alien Relative, Form I-130
On the I-130 application, what address abroad do I need to write for my wife? She has been living in the US legally for the past 9 years.

Answer #7
I believe the question is ‘Your Relative’s Address Abroad’ – you should enter the last known address where she lived outside of the United States or N/A. You can certainly contact our office to schedule a consultation to discuss the specifics of your case.


Question #8 – H-1B Nonimmigrant Work Visa
I am an H-1B holder, and I have already filed an I-485. Do I need to apply for Advance Parole?

Answer #8
You are not required to file for Advance Parole; however, it may be worthwhile to speak with an Attorney to discuss the advantages/disadvantages of applying for an Advance Parole document while in a valid H-1B nonimmigrant visa status. Contact our office to schedule a consultation to further discuss.


Question #9 – Green Car Renewal
I came to the United States on a Fiancé’ visa many years ago. I got married and have been married for 11 years since. However, I never renewed my green card (it has been 6 years). My recently sent application was denied. What could be the reason?

Answer #9
The reason for denial should have been listed in the notification that you received informing you that the application had been denied. Contact our office to schedule a consultation.


Question #10 – H-1B Nonimmigrant Work Visa
I just got my visa stamped, but I am planning to change employers before travelling to US. If my new employer wants to file an H1b petition for me, will it be cap exempt considering I haven’t travelled to the US on this H-1B?

Answer #10
It depends. More information is required from you in order to affirmatively answer YES or NO to your question. Is this your first ever H-1B? Who sponsored you – a cap exempt entity? ETC... Please contact our office to schedule a consultation.


MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, November 7, 2014!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

H-2B Cap Count UPDATE – 10/10/14

October 23, 2014

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (10/10/14); 7,790 beneficiaries have been approved and 1,372 are pending for a total of 9,162.

The H-2B cap limit for second half of FY 2015 (April 1 - September 30) is 33,000. As of the last count (10/10/14); 0 beneficiaries have been approved and 0 are pending for a total of 0.

For further details read, “Cap Count for H-2B Nonimmigrants


Source of Information:

- USCIS.gov (10/16/14) Web Page

- AILA InfoNet Doc. No. 14101744 (posted 10/17/14)

BALCA on Familial Relationship between Alien and Employer

October 22, 2014

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Forman.”

Upon evaluating an Employer’s Application for Permanent Labor Certification which provided that the employer was a closely held corporation, partnership, or sole proprietorship in which the alien has an ownership interest, or …there is a familial relationship between the owners, stockholders, partners, corporate officers, incorporators, and the alien, the CO issued a “Request for Additional Information.” In 30 days, he needed the following evidence: (1) Proof of a federal employer identification number; (2) Proof that the company was a business entity; and (3) Proof of the physical location of the company. It appears from the record that most of the information requested by the CO already accompanied the Application.

A few months later, the CO delivered a “Notice of Supervised Recruitment.” The Employer was required, in 30 days, to send a draft job advertisement, corporate financial & structure documentation as well as any family relationship the Alien has to the Employer. In a timely fashion, the Employer responded by providing their business license, operating agreement, IRS FEIN number, organization certificate from the Virginia State Corporation Commission, and a letter from the Company’s owner describing his relationship to the Alien.

After reviewing the data, the CO did not conduct any additional supervised recruitment and denied the Labor Application without issuing a request for proof of the Employer’s recruitment efforts. He believed the position “was not open and available to any US worker”. Since the foreign worker is the brother of the owner, the Alien has a benefit in the company and influence/control over the hiring practices. The CO stated the Employer violated PERM regulation 20 CFR 656.10(c)(8).

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that they supplied documents to prove that the Alien has no ownership interest in the company. In addition, they noted that the CO did not request to view any recruitment documentation on the position so he could not determine whether or not the position was available to US workers.

Upon reconsideration of the employer’s arguments, the CO forwarded the case to BALCA for further examination. In a letter to the Board, he cited the foreign worker was already employed by the company in the same position for three years before the new company was established. The CO also noted the Alien is the supervisor for the other 4 employees in the company and only reports to the Owner (his brother).

When determining whether a bona fide job opportunity exists, the Board must consider the totality of the circumstances, considering, among other factors, whether the alien:


  1. Is in the position to control or influence hiring decisions regarding the job for which labor certification is sought;

  2. Is related to the corporate directors, officers or employees;

  3. Was an incorporator or founder of the company;

  4. Has an ownership interest in the company;

  5. Is involved in the management of the company;

  6. Is on the board of directors;

  7. Is one of a small number of employees;

  8. Has qualifications for the job that are identical to specialized or unusual job duties and requirements stated in the application; and

  9. Is so inseparable from the sponsoring employer because of his or her pervasive presence and personal attributes that the employer would be unlikely to continue in operation without the alien.


*No single factor, such as a familial relationship between the alien and the employer or the size of the employer, shall be controlling.

After BALCA’s examination of the case, BALCA reversed the CO’s decision. The Board believed that the CO should not have denied certification. BALCA mentioned that the Employer provided enough evidence that the Alien did not have ownership interest in the company. The Board also stated the CO failed to request recruitment documentation for the job opening and he “abandoned the supervised recruitment process without warning or notice or to the Employer.”


Impact of New Americans - California, Colorado, Connecticut & Delaware

October 21, 2014

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2014)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on four states at a time. This week we will highlight; California, Colorado, Connecticut and Delaware.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

California
Colorado
Connecticut
Delaware


Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

MVP "Immigration Q & A Forum" - This Friday, October 24, 2014

October 20, 2014

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, October 24, 2014. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

IPC - Executive Grants of Temporary Immigration Relief, 1956-Present

October 17, 2014

On October 2, 2014, the Immigration Policy Center (IPC) published the article, “Executive Grants of Temporary Immigration Relief, 1956-Present”. The publication points out that since 1956, every United States President has used their executive power to grant temporary immigration relief of some form. This article includes an easy to read chart listing thirty-nine (39) different examples, some big, some small, of Immigration related Executive Decisions. These Presidential decisions were made for a variety of reasons; legislation was pending, in response to humanitarian emergencies or to address situations that existing laws couldn’t handle. Please review the article listed below for more detailed information and to view the chart.


Source of Information:

immigrationpolicy.org, 10/2/14, Just the Facts - Article:
Executive Grants of Temporary Immigration Relief, 1956-Present

Impact of New Americans - Alabama, Alaska, Arizona & Arkansas

October 16, 2014

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2014)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on four states at a time. This week we will highlight; Alabama, Alaska, Arizona and Arkansas.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

Alabama
Alaska
Arizona
Arkansas


Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States