MVP LAW GROUP – Immigration Q&A Forum, Friday, April 17, 2015

April 17, 2015

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 – H1B Nonimmigrant Work Visa
Now that the H-1B Cap for FY 2016 been reached, when we will expect to hear which cases have been accepted?

Answer #1
The USCIS announced that the H1B CAP for FY2016 was reached as of April 7, 2015, with nearly 233,000 petitions filed. On April 13, 2015, a week later, the random lottery selection process took place. USCIS has announced that CAP cases filed under Premium Processing will begin to be processed as of April 27, 2015. As in years past, we do not expect to receive receipt notices on regular CAP cases until middle/end of May, early June. If a CAP case was not selected under the CAP, we do not expect to receive the rejection petition until late May/early June.


Question #2 – Employment Based Green Card
How long is the processing of an I-140? Will there still be chances of getting I-140 denied even if the worker is labor certified? If yes, what are the grounds?

Answer #2
The current processing times for the I-140 Immigrant Petition for Alien Worker are roughly 6-8 months depending upon the Service Center and preference category the petition is filed under. If the petition is eligible for premium processing, premium processing severely reduces the processing time to 15 calendar days.

Yes, the I-140 can still be denied even though the Labor has been certified. The I-140 immigrant petition for alien worker centers around the Petitioner’s ability to pay the prevailing wage; and the candidate’s academic and work experience qualifications. The I-140 stage serves as the ‘show me’ stage, as in – prove through the submission of substantiating evidence that the candidate has the minimum educational/experience requirements for the position and that the Petitioner has the present ability to pay the proffered wage to the beneficiary and will pay the proffered wage once the candidate becomes a Lawful Permanent Resident. If the Petitioner cannot satisfy its burden to prove the items listed above, then the I-140 will be denied.


Question #3 – DACA Renewal
How will the USCIS evaluate my request for the renewal of my DACA?

Answer #3
You may request a renewal if you met the initial DACA guidelines and you:
• Did not depart the United States on or after Aug. 15, 2012, without advance parole;
• Have continuously resided in the United States since you submitted your most recent DACA request that was approved; and
• Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Take a look at our recent blog post – “Reminder to Renew - Deferred Action for Childhood Arrivals (DACA)


Question #4 – Consular Processing
Who is responsible for scheduling a visa immigrant Interview, the Consulate or do I have to call? My wife’s I-130 was just approved and just curious to know what we need to do next.

Answer #4
The National Visa Center (NVC) will contact your wife regarding the next steps – payment of the Immigrant Visa Fee and Affidavit of Support Fee, the submission of civil documents to the NVC, etc.

Then, once the NVC has all of the documentation it needs from your wife, they will coordinate with the Consular Office in order to schedule the Immigrant Visa interview, and will notify you.


Question #5 - Employment Based Green Card
I am currently in the process of filing my I-140 and I-485 concurrently. Can I also apply for an Employment Document (EAD) and Advance Parole at the same time?

Answer #5
Yes, applying for Employment Authorization (EAD) and Advance Parole (AP) are ancillary benefits of applying for Adjustment of Status (AOS, I-485).


Question #6 – H1B Nonimmigrant Work Visa
I just got my H-1B extension approved. Do I need to go home to obtain visa stamp in order to work?

Answer #6
If an I-94 for the petitioning employer has been provided with the approval, this is authorization for the beneficiary to commence work with the petitioning employer as of the start date noted in the I-94. The left portion of the I-94 is for the beneficiary’s records. In summary - If an I-94 is present on the approval, there is no need to go home to obtain visa stamping in order to work.

If an I-94 has NOT been issued with the approval notice, the beneficiary does NOT have authorization to work for the petitioning employer until they have obtained a valid and current I-94, meaning, you will need to depart the U.S., go and obtain H1B visa stamping, and then return to the U.S. to be admitted in H1B visa status under the new visa.


Question #7 - Naturalization
If I was convicted of a petty crime and my record was expunged, can I apply to be a naturalized US Citizen?

Answer #7
It depends upon the type of crime and the punishment received. You should consult with an Immigration Attorney to discuss your conviction, the punishment received, etc. in order to determine your eligibility for Naturalization.


Question #8 – Family Based Green Card
My daughter is a U.S. citizen. At what age can she petition me for permanent residency?

Answer #8
Your daughter will not be able to sponsor you until she reaches the age of 21.


Question #9 – H1B Nonimmigrant Work Visa
If my case is rejected during the H-1B FY 2016 Cap, what are my other options to work in the US?

Answer #9
Please review our recent blog entry “Alternatives to the H-1B Visa for Individuals who did not make the FY2016 H-1B Quota”.


Question #10 – Marriage Based Green Card
What is a “Stokes” interview?

Answer #10
A Stokes Interview is an interview that the USCIS Officer will conduct when s/he questions the legitimacy of your marriage. At the Stokes Interview, you and your spouse will be sworn in and questioned separately. The examiner will compare your answers to the answers of your spouse and look for any discrepancies. If you give the same answers, you will pass. If you don’t, you will be given an opportunity to explain any discrepancies.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 1, 2015!

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

USCIS H-1B Premium Processing to Begin April 27

April 16, 2015

On Monday, April 27, 2015, U.S. Citizenship and Immigration Services (USCIS) will begin premium processing for H-1B petitions subject to the FY 2016 cap, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher.

USCIS first announced that we would begin premium processing for H-1B cap cases no later than May 11th in a USCIS news release dated March 12, 2015, so they are moving ahead quickly. USCIS provides premium processing service for an extra cost, for certain employment-based petitions and guarantees a 15-calendar-day processing time.


Note: USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B FY2016 Cap Season Web page.

Source of Information:

USCIS.gov, 4/14/15, News Alert:
H-1B Cap Premium Processing to Begin April 27

Visa Bulletin - May 2015

April 15, 2015

The Department of State has released its latest Visa Bulletin.

Click here to view the May 2015 Visa Bulletin

As projected by the U.S. Department of State, the May 2015 Visa Bulletin shows the EB2 date for nationals from India moved from 9/1/07 to 4/15/08; the EB3 date for nationals from India made a small movement from 1/8/04 to 1/15/04; the EB2 for Chinese Nationals moved from 4/1/11 to 6/1/12; the EB3 for Chinese Nationals moved from 1/1/11 to 5/1/11; and EB3 for WW moved from 10/1/14 to 1/1/15; and the F2A category moved from 8/1/13 to 9/1/13, except Mexico which moved from 7/8/13 to 8/8/13. The F2A category is reserved exclusively for Spouses and unmarried children (under the age of 21) of green card holders (LPRs).


*The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin.

**”All Chargeability Areas except Those Listed”, includes all other countries except: China, India, Mexico and Philippines.

Reminder to Renew - Deferred Action for Childhood Arrivals (DACA)

April 14, 2015

U.S. Citizenship and Immigration Services (USCIS) is trying to get the word out, reminding people who are already recipients of Deferred Action for Childhood Arrivals (DACA) that their current period of DACA and employment authorization could expire if they wait too long to request renewal. USCIS is encouraging them to submit their DACA renewal requests 120 days before their current DACA and employment authorization is set to expire.

In March 2015, USCIS began mailing reminder notices to current DACA recipients reminding them that their initial two-year grant of DACA is expiring, and that they may request a renewal.


*If a current grant of deferred action expires before the applicant receives a renewal of DACA, they will begin to accrue unlawful presence and will not be authorized to work until the EAD renewal is approved.


DACA recipients may request renewal of DACA if they met the initial DACA guidelines and:

-Did not depart the United States on or after August 15, 2012, without advance parole;
-Have continuously resided in the United States since they submitted their most recent, approved DACA request, up to the present time; and
-Have not been convicted of a felony, a significant misdemeanor, or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.


Note: USCIS continues to accept initial and renewal requests for two-year grants of DACA under the guidelines established in 2012. A federal district court order issued on February 16, 2015, enjoining USCIS from implementing the expanded DACA guidelines did not impact USCIS’ ability to continue processing DACA requests under the 2012 guidelines.


Source of Information:

-AILA Doc No. 15040860, posted 4/7/15: USCIS Message: Timing of DACA Renewal Applications

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

-USCIS.gov, 3/10/15, FAQs: DACA – FAQs updated 10/23/14

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


Related Links:

-USCIS.gov, 3/10/15, Web Page: Consideration of Deferred Action for Childhood Arrivals (DACA)

MVP "Immigration Q & A Forum" - This Friday, April 17, 2015

April 13, 2015

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, April 17, 2015. 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.

USCIS Reaches H-2B Cap for Fiscal Year 2015

April 10, 2015

U.S. Citizenship and Immigration Services (USCIS) has announced that the congressionally mandated H-2B cap for fiscal year (FY) 2015 was reached on Thursday, March 26, 2015.

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. There is a cap limit of 33,000 for the first half of the fiscal year (10/01 – 03/31) and 33,000 for the second half (04/01 – 9/30) for a total of 66,000 H2B visas issued per fiscal year.

Timeline for H-2B cap for fiscal year (FY) 2015:
- As of January 26, 2015, the H2B cap count was reached for employment falling under the 1st half of FY2015.

- As of March 5, 2015, the USCIS temporarily suspended the adjudication of Form I-129 for H2B nonimmigrant visa petitions as a result of a federal court decision on March 4, 2015 (Perez v. Perez, No. 3:14-cv-682 (N.D. Florida, Mar. 4, 2015) against the Department of Labor (DOL) which suspended the DOL from issuing prevailing wage determinations and certifying temporary labor applications under the H2B visa program.

- As of March 17, 2015, the USCIS resumed the processing of H2B nonimmigrant visa petitions because the DOL requested and was granted a stay of the March 4th order until April 15, 2015.

- As of March 26, 2015, the H2B cap count was reached for employment falling under the 2nd half of FY2015, thereby closing the H-2B cap for this fiscal year.


Note: USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap.

Petitions for the following workers are exempt from the H-2B cap:
- H-2B workers in the United States or abroad who have been previously counted towards the cap in the same fiscal year;
- Current H-2B workers seeking an extension of stay;
- Current H-2B workers seeking a change of employer or terms of employment;
- Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
- H-2B workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of Northern Mariana Islands and/or Guam.


For more detailed information, please read the USCIS News Alert, “USCIS Reaches H-2B Cap for Fiscal Year 2015”.


Source of Information:
USCIS.gov, 4/2/15, News Alert:
USCIS Reaches H-2B Cap for Fiscal Year 2015

USCIS.gov, 4/3/15, Web Page:
Cap Count for H-2B Nonimmigrants

MVP Immigration Blog, 3/11/15, Blog Post:
H-2B Cap Count UPDATE – 2/27/15

Alternatives to the H-1B Visa for Individuals who did not make the FY2016 H-1B Quota

April 9, 2015

Now that all of the new H-1B visas for the 2016 Fiscal Year have been allocated, What options do Employers who are looking to hire Foreign National Professionals have?

Here are some creative solutions to this problem:

OPT – STEM Extension
If the company is registered for E-Verify, the database that enables employers to verify the legitimacy of work authorization and identity documents at the time of hire, those who have been granted 12 months of Optional Practical Training after graduation, are eligible for a STEM extension of an additional 17 months of work authorization.

O-1 Visa
The O-1 visa is suited for individuals of extraordinary ability or achievement. The O classification is a useful and flexible alternative to the H-1B program because there is no overall limit on time in the classification and there is no cap. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.”

E-3 Visa
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

L-1 Visa
The L-1 visa is an option for international organizations with offices in the United States who transfer employees to the United States for temporary periods of time. In order to be eligible for an L-1 visa, the petitioning entity must prove that the beneficiary of the visa has worked for the non-U.S. based sister company/subsidiary for at least one full year within the last three years as an executive, manager or employee with specialized knowledge.

H-1B Visa for FY2017
WAIT for the H-1B FY2017 Quota! The H-1B FY2017 Quota will open on April 1, 2016 with employment beginning on October 1, 2016. 65,000 visas are annually allocated to foreign nationals who possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. We can begin to prepare cases for the annual quota now; however, no cases will be filed with the USCIS towards the CAP until after April 1, 2016.

Contact MVP Law Group for more information!

H-1B Cap (FY 2016) has been reached!

April 8, 2015

U.S. Citizenship and Immigration Services (USCIS) have announced that they reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2016 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

USCIS stated that they must first finish the initial intake before conducting the random selection process. The date of the selection process has not been set due to the high number of petitions received! USCIS will reject and return filing fees for all cap-subject petitions that are not selected.

USCIS will conduct the advanced degree exemption random selection process first. Any advanced degree petitions not selected will then become part of the random selection process for the 65,000 limit.

For more information, please read the USCIS news release, “USCIS Reaches FY 2016 H-1B Cap”.

Source of Information:

USCIS.gov, 4/7/15, News Release:
USCIS Reaches FY 2016 H-1B Cap

Related Link:

H-1B Fiscal Year (FY) 2016 Cap Season

H-1B Specialty Occupations


Impact of New Americans (2015) - Maine, North Carolina & Ohio

April 7, 2015

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2015)

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 three states at a time. This week we will highlight; Maine, North Carolina & Ohio.

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:

Maine
North Carolina
Ohio

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

REGISTER TODAY for an Online Webinar with USCIS

April 6, 2015

United States Citizenship and Immigration Services (USCIS) has invited Stakeholders, and anyone affected by the organization, to an online Webinar on Friday, April 10, 2015 between 12:00pm to 1:00pm (EST). The content of the webinar will be the USCIS online Customer Service Tools including myUSCIS and will include a Q&A.

This newly introduced tool, myUSCIS, allows you to setup an individual online account to view your case status and history for most of the applications and petitions you have filed with USCIS.

Event Information:
DATE: Friday, April 10, 2015
TIME: 12:00pm to 1:00 pm (EST)

To register for this session, please follow the steps below:
Visit our registration page to confirm your participation
• Enter your email address and select “Submit”
• Select “Subscriber Preferences”
• Select the “Event Registration” tab
• Be sure to provide your full name and organization
• Complete the questions and select “Submit”

Note: After your registration is processed, you will receive a confirmation email with additional details.

Source of Information:
AILA Doc. No. 15033103. (Posted 03/31/15):
- USCIS Invites Stakeholders to Webinar on USCIS Online Tools

Related Link:
- Find Information Quickly – myUSCIS Account

MVP LAW GROUP – Immigration Q&A Forum, Friday, April 3, 2015

April 3, 2015

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 – H1B Nonimmigrant Work Visa
When will the USCIS let us know the status of H-1B FY 2016 Cap Cases?

Answer #1
You may monitor the status of how many cases are being filed with the USCIS at the following USCIS website: H-1B Fiscal Year (FY) 2016 Cap Season

Question #2 – H1B Nonimmigrant Work Visa
I'm on an H1B due to be renewed by Oct 1st this year. I'll be putting in the I-129 for the renewal the start of April. Let's assume it gets approved and I get my renewed I-797 and Visa for 2015-2018. If I change employers between April and October, does the new I-797 survive this transition or do I have to renew again?

Answer #2
In order to change employers you will first have to file an H-1B transfer petition with the USCIS, as you cannot transfer employment without being approved first by the USCIS. Your H1B transfer petition should include a request to extend the visa for the remaining time period available under the 6 year maximum in H1B visa status.


Question #3 – Employment Based Immigration
My I-140 was just approved. The next step is to apply for Adjustment of Status (AOS). What kind of documents do I need to have for the AOS application?

Answer #3
Yes, the next step would be to file for Adjustment of Status; however, is your priority date current? If not, then you will need to begin collecting supporting documentation now, and once your priority date becomes current, submit the documentation with the completed I-485 form to the USCIS. Some of the documents required: birth certificates, educational transcripts/degrees, passports, federal income tax returns, employment letter, etc. Speak with an Immigration Attorney for a complete list of documents required for the I-485 filing.


Question #4 – Diversity Lottery
What is the Diversity Lottery and when does it take place?

Answer #4
As provided on the Department of State (DOS) website, Section 203(c) of the Immigration and Nationality Act (INA) provides for a class of immigrants known as “diversity immigrants,” from countries with historically low rates of immigration to the United States. A limited number of visas are available each fiscal year. The DVs are distributed among six geographic regions and no single country may receive more than seven percent of the available DVs in any one year.
Online registration for the 2016 Diversity Lottery Program began in October 2014 and concluded in November 2014. Check out the link below for more information: Diversity Visa Program Entry Instructions
If you do not have either the required education or qualifying work experience, you are not qualified to be issued a diversity visa. (Only you, as the principal applicant, must meet this requirement. Your spouse and children do not have to meet this requirement.) You should not continue with your DV application if you do not meet the qualifying education or work experience requirements, you will not be issued a visa, and any fees you pay will not be refunded.


Question #5 – H1B Nonimmigrant Work Visa
My wife is on H-4 visa and would like to apply for an H-1B. I have an I-140 and have approved my H-1 status beyond 6 years. When and how can she apply?

Answer #5
I believe you may be confusing the actual H1B nonimmigrant work visa with the ability for spouses of certain H1B holders to obtain employment authorization (EAD).

H1B nonimmigrant work visa - You wife may only apply for an H1B under the CAP, which opens April 1, 2015 for FY2016, with employment to begin October 1, 2015. In order to apply under the CAP, your wife must have an offer of qualifying employment.

Employment Authorization for spouses of certain H1B holders – As of May 26, 2015, spouses of certain H1B holders who have extended their H1B status beyond the 6th year or are holders of approved I-140 petitions, are eligible to apply for employment authorization.


Question #6 – H1B Nonimmigrant Work Visa
How do I recapture time that I didn’t use on my H-1B Visa? I was approved back in 2013 but I only worked for the company for 6 months.

Answer #6
You file a petition requesting to recapture time you spent outside of the US, and/or unused time on your H-1B visa. You would need a valid offer of employment in the U.S. in order to file the petition. Speak with an Immigration Attorney for further information concerning your options.


Question #7 – NAFTA, TN Nonimmigrant Work Visa
I am a Canadian Citizen and would like to work in the US. How long does a TN Visa Status last?

Answer #7
A TN visa may be approved for the requested length of employment, not to exceed three years, or passport validity.


Question #8 – Deferred Action for Childhood Arrivals (DACA)
If you apply for DACA and get denied, do you risk deportation?

Answer #8
As indicated on the USCIS website, if you apply for DACA and are denied, you cannot appeal the decision or file a motion to reopen or reconsider. USCIS will not review its discretionary determinations.
The USCIS will apply their policy guidance governing the referral of cases to U.S. Immigration and Customs Enforcement (ICE) and the issuance of notices to appear. If your case does not involve a criminal offense, fraud, or a threat to national security or public safety, they WILL NOT refer your case to ICE for purposes of removal proceedings except where DHS determines there are exceptional circumstances.
*You will not be considered for DACA if you have been convicted of: A felony offense; A significant misdemeanor offense; or three or more other misdemeanor offenses not occurring on the same date and not arising out of the same act, omission, or scheme of misconduct. Or, you are otherwise deemed to pose a threat to national security or public safety.


Question #9 – Naturalization
Both my husband and I have been LPRs for 9 years and would like to become US Citizens. We are afraid my husband might not be eligible because he was convicted of a DWI last year. He did not serve jail time. Would he still be eligible?

Answer #9
It would be advisable for you to speak with an Immigration Attorney to further discuss your situation.


Question #10 – L1 Intra-Company Transferee Nonimmigrant Work Visa
If my company wants to bring over workers from our location in India to our US office, do we need to apply for an H-1 or L-1 Visas?

Answer #10
The L-1 visa allows companies operating both in the U.S. and abroad to transfer certain types of employees from its overseas office to the U.S. office for up to seven years. This visa comes in the following categories: L-1A – for executives and managers; and L-1B – for personnel with specialized knowledge. Businesses that function both in the United States and in their home country gain the benefits of the best of both areas. The L-1 visa is open to international organizations with offices in the U.S. who transfer employees to the U.S. office for temporary periods of time. To obtain an L-1 visa, you must be able to prove that you have worked for the non-U.S. company for at least one full year within the last three years as an executive, manager or employee with specialized knowledge. The L-1 visa enables the transfer of managers, executives and specialized knowledge personnel to a U.S. office, subsidiary or affiliated company.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 17, 2015!

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

BALCA Rejects Employer’s Use of Washington Examiner for PERM Ads

April 2, 2015

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 “Senior Food Technologist.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied the application. He believed that the Washington Examiner, where the employer placed its Sunday job postings, did not classify as a newspaper of general circulation in the area of intended employment. The CO was certain most job seekers would choose a paper with a larger classified section and job advertisements. He based his denial on PERM regulation 20 C.F.R. 656.17 (e)(1)(i)(B)(1). This regulation mandates newspaper advertisements for recruitment must be placed “in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity; and most likely to bring responses from able, willing, qualified and available U.S. workers.”

After the denial, the Employer requested reconsideration of the case. The Employer argued the Washington Examiner did have a substantial classified section. They stated the newspaper “has a classified section with advertisements for a large number of job opportunities that included both professional & non-professional positions.” In its reconsideration request, the Employer included a “Wikipedia” article about the Washington Examiner. The Employer argued that because of the size of the circulation of the Examiner as reported on the Wikipedia page, it was in fact the newspaper most appropriate to the occupation and workers.

The CO forwarded the appeal to BALCA for review. BALCA thought the Employer did not prove that the Washington Examiner was the newspaper in the Washington DC area most appropriate to the occupation in question. The Board considered the Washington Post to be a more suitable general circulation newspaper. BALCA thereby affirmed the CO’s denial of the labor certification.