BALCA on Calculating 180-Day Period for Filing under 20 CFR §656.17(e)

March 27, 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 “Operating Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO denied certification of the application because the Employer had placed their State Workforce Agency (SWA) job order more than 180 days prior to the filing of their ETA Form 9089.

The Employer sent a reconsideration request to the CO arguing that “the 180 day period should be calculated based on the end date of the SWA, rather than the date it commenced.” To interpret the regulations otherwise would penalize employers who wanted to run their SWA’s for longer than 180 days. The CO did reconsider but afterwards, he confirmed the denial. Not happy with the outcome, the Employer appealed the decision to BALCA and restated its argument.

Upon review of this case, BALCA upheld the CO’s denial of labor certification. The panel referenced PERM regulation 20 CFR 656.17 (e). “Under these regulations, the SWA job order must begin no more than 180 days prior to the filing of the ETA Form 9089.” The SWA job order must have ended at least 30 days prior to the filing of the ETA Form 9089. This time period allows for companies to evaluate the current labor market. The panel stressed that if too much time passes, it is not an accurate reflection of the present labor market.


Impact of New Americans (2015) - Florida, Georgia & Iowa

March 26, 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; Florida, Georgia & Iowa.

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
Iowa

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

Updated Service Center Processing Times

March 25, 2015

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 3/6/15 with processing dates as of 1/31/15.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.


California Service Center (CSC)

National Benefits Center (NBC)

Nebraska Service Center (NSC)

Texas Service Center (TSC)

Vermont Service Center (VSC)

EB-5 Immigrant Investor Program Office (IPO)


**Please be aware that the data provided above is approximately 45 days old at the time of posting.

If your petition is out-side of the normal range listed, contact USCIS (1-800-375-5283).

If you are a client of MVP Law Group and would like our assistance please contact our office.

Reminder - FY2016 H1B CAP - Another Very Short Season Expected

March 24, 2015

The Fiscal Year 2016 H-1B season is quickly approaching and has been projected to be another short season. The H1B CAP for FY2015 was reached on April 7, 2014.

Each Fiscal Year (FY), which starts on October 1, 65,000 H-1B visas become available for what is referred to as the “General Cap,” and 20,000 H-1B visas become available for what is referred to as the “Master’s Cap.” Those individuals holding a U.S. Master’s degree or higher may fall within the Master’s Cap; all others fall within the General Cap. The FY H-1B filing season opens six months before each FY, i.e., during the first week in April.

The FY 2016 H-1B Cap season will open on April 1, 2015 with employment beginning October 1, 2015.

In the past few seasons, as H-1B visa numbers dwindled, the rate of filings of Cap-subject H-1B visa petitions increased. For this reason, we predict the H-1B quota will be reached in the first week, just like last year.

This will be yet another of the shortest H-1B Seasons since FY 2009, when 165,000 H-1B petitions were filed within the five-day filing period at the beginning of April, 2008 and a lottery was needed to select the petitions that would be awarded a place within the Cap. After the start of the Great Recession, however, the demand for H-1B visas decreased dramatically, resulting in significantly longer H-1B seasons: the FY 2010 H-1B Cap was reached December 21, 2009; the FY 2011 H-1B Cap was reached January 27, 2011; the FY 2012 H-1B Cap was reached November 22, 2012; the FY 2013 H-1B Cap was reached June 11, 2012; the FY2014 H1B CAP was reached April 5, 2013; and the FY2015 H1B CAP was reached April 7, 2014. Many see the markedly higher demand for H-1B visa petitions this season as indicative of an improving job market and economy in the U.S.

Employers wishing to file H-1B Cap-subject petitions with the earliest possible start date in FY 2016, i.e., with a start date after October 1, 2015 need to start their cases immediately. Employers cannot file H-1B visa petitions for new employees until they first obtain a labor condition application (LCA) from the U.S. Department of Labor (DOL), which takes at least seven (7) business days to process. Start now or wait about 18 months before the next H-1B visas are available in October 2016.

Please contact our office to schedule a consultation to discuss the conditions affecting your specific case.

Round-Up of Immigration Related Legislation (Jan-Feb2015)

March 23, 2015

The following immigration related bills were introduced into the House of Representatives and the Senate January 2015 through February 2015.

Pending Legislation:

Senate Bills
S.153: High-Skilled Immigration Bill (“I-Squared”) Reintroduced in Senate
1/14/2015
On 1/13/15, Senators Hatch (R-Utah), Klobuchar (D-Minn.), Rubio (R-Fla.), Coons (D-Del.), Flake (R-Ariz.), and Blumenthal (D-Conn.) introduced the Immigration Innovation (“I-Squared”) Act of 2015. This bill was first introduced in the 113th Congress.
AILA Doc. No. 15011442

S. 181 – The Startup Act
1/16/2015
On 1/16/15, Senators Moran (R-Kan.) and Warner (D-VA) introduced the fourth version of their Startup Act (S.181).
AILA Doc. No. 15012744

S. 208: Secure the Border First Act of 2015
1/21/2015
On 1/21/15, Senator Johnson (R-Wis) introduced Secure the Border First Act of 2015 with Senator Cornyn (R-Texas) and Senator Flake (R-Ariz).
AILA Doc. No. 15020340

S. 534: Immigration Rule of Law Act of 2015
2/23/2015
On 2/23/15, Senator Collins (R-ME) introduced the Immigration Rule of Law Act of 2015.
AILA Doc. No. 15022765


House Bills
H.R. 399: Secure Our Borders First Act of 2015
1/26/2015
On 1/16/15, Representative McCaul (R-Texas), chairman of the Committee on Homeland Security, introduced H.R. 399, the Secure Our Borders First Act of 2015.
AILA Doc. No. 15012643

H.R. 1147: Legal Workforce Act
2/27/2015
On 2/27/15, Representative Smith (R-TX) introduced the Legal Workforce Act. H.R. 1147 (H.R. 1147).
AILA Doc. No. 15030203

H.R. 1149: Protection of Children Act of 2015
2/27/2015
On 2/27/15, Representative Carter (R-TX) introduced the Protection of Children Act of 2015 (H.R. 1149).
AILA Doc. No. 15030202

H.R. 1153: Asylum Reform and Border Protection Act of 2015
2/27/2015
On 2/27/15, Representative Chaffetz (R-UT) introduced the Asylum Reform and Border Protection Act of 2015 (H.R. 1153).
AILA Doc. No. 15030201

H.R. 1148: Michael Davis, Jr. in Honor of State and Local Law Enforcement Act
2/27/2015
On 2/27/15, Representative Gowdy (R-SC) introduced the Michael Davis, Jr. in Honor of State and Local Law Enforcement Act (H.R. 1148).
AILA Doc. No. 15030200

MVP LAW GROUP – Immigration Q&A Forum, Friday, March 20, 2015

March 20, 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 - General
What is the Visa Waiver Program? Is Portugal included in the VWP?

Answer #1
As provided on the Department of State website, The Visa Waiver Program (VWP) enables nationals of 36 participating countries to travel to the United States for tourism or business (visitor [B] visa purposes only) for stays of 90 days or less without obtaining a visa. The program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus consular resources in other areas. VWP eligible travelers may apply for a visa, if they prefer to do so. Nationals of VWP countries must meet eligibility requirements to travel without a visa on VWP, and therefore, some travelers from VWP countries are not eligible to use the program. VWP travelers are required to have a valid authorization through the Electronic System for Travel Authorization (ESTA) prior to travel, are screened at the port of entry into the United States, and are enrolled in the Department of Homeland Security’s US-VISIT program.

Yes, Portugal is a participating country in the Visa Waiver Program.


Question #2 – Employment Based Immigration
What is the difference between an EB-2 and an EB-3 classification for a Green Card?

Answer #2
The EB-2 preference classification is open to 3 types of foreign nationals: (1) Exceptional Ability in the Sciences, Arts or Business; (2) Advanced Degree Professionals; (3) Qualified Alien Physicians who will practice medicine in an area of the U.S., which is underserved.
The EB-3 classification includes aliens with at least two years of experience as skilled workers; professionals with a baccalaureate degree; and other workers with less skill who can contribute abilities unavailable in the U.S. Skilled workers should have at least two years’ experience, either through hands-on experience or through post-secondary education. Professionals should have either a U.S. bachelor's degree or a foreign equivalent degree.

Question #3 – Family Based Immigration
I’ve read conflicting information on the internet; can you please clarify for me who is responsible for scheduling the Green Card Interview, my spouse or the Consulate itself?

Answer #3
The Consulate is responsible for scheduling the Interview and will send you notice of the date and time of the scheduled interview.


Question #4 – TN Visa
I am a Canadian citizen and wanted to work as a dentist in the US. Do I qualify for a TN Visa under the NAFTA regulations?

Answer #4
The position of Dentist is listed in Appendix 1603 of the NAFTA regulations. In order to be eligible, you would need the following: (i) present job offer from a U.S. employer; and proof that you have the following qualifications (ii) D.D.S., D.M.D., Doctor en Odontologia or Doctor en Cirugia Dental; or state/provincial license.


Question #5 - Employment Based Green Card
Can an employer file an I-140 for a beneficiary in multiple visa categories?

Answer #5
Yes, as long as there is a bona fide job offer behind each I-140 petition, and effective recruitment efforts were carried out to test the U.S. labor market for each case.


Question #6 – H-1B Nonimmigrant Visa
Can my spouse apply for an H-1B or does she have to apply for an H-4?

Answer #6
Your spouse may only apply for an H-1B if she has a U.S. employer willing to sponsor her H-1B temporary work visa. Otherwise, if she does not have a bona fide offer of employment from a U.S. employer willing to sponsor her, then, yes in order to accompany you and stay with you in the U.S., she would need to apply for an H4 visa. Individuals in H4 dependent visa status are NOT authorized for employment, they are NOT allowed to work.


Question #7 – H1B Nonimmigrant Visa
Can I still work if my H1B extension has been filed, but the USCIS still has not processed my application yet? My H1B visa has just expired.

Answer #7
Under regulation 8 C.F.R.§274a.12(b)(20), a person lawfully employed under A-3,E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2,P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R.§214.1, is automatically given 240 days from the date of expiration.


Question #8 – General
I am from Jamaica and have always wanted to live and work in the United States. My friend and I thought about applying for work at Disney World. What kind of Visas would we need?

Answer #8
You would need to speak with a Representative at Disney World, as they have several international exchange programs available for international applicants. They have a J1 Cultural Exchange Program that may suit your needs.


Question #9 – Deferred Action for Childhood Arrivals (DACA)
I think I am eligible under DACA. Do you think given the potential risks, I should file my application with USCIS?

Answer #9
Only YOU can make the decision of whether or not to file your application. I would recommend that you speak with a qualified Immigration Attorney first to discuss your eligibility and the risks involved in submitting a DACA Application to the USCIS.


Question #10 – Temporary Nonimmigrant Work Visas
Can a Canadian native apply for an H-1B? Or do they only qualify for a TN Visa?

Answer #10
Anyone may apply for an H-1B nonimmigrant work visa so long as they meet the educational requirements. Only Canadians citizens and Mexican citizens may take advantage of the TN visa.


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 3, 2015!

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

USCIS Resumes H-2B Adjudications - Premium Processing Remains Suspended!

March 19, 2015

On Tuesday, March 17th, the Department of Homeland Security (DHS) resumed adjudication of H-2B Visa petitions! They announced that they would continue the suspension on H-2B premium processing until further notice. Premium Processing is a service which for an added cost can be used to expedite processing of certain employment-based petitions and applications, such as an H-2B Visa petition.

On March 16, 2015 the Department of Labor (DOL) requested and was granted a stay of the March 4th order of the U.S. District Court for the Northern District of Florida in Perez v. Perez until April 15. That order vacated DOL's H-2B regulations on the grounds that DOL had no authority under the Immigration and Nationality Act to issue them.

Please review the link to USCIS News Alert, “USCIS Resumes H-2B Adjudications; Premium Processing Remains Suspended” for more information and for more background information, view our blog post, “USCIS Temporarily Suspends Adjudication of H-2B Petitions As of 3/5/2015”.


Source of Information:

USCIS.gov, 3/17/15, News Alert:
USCIS Resumes H-2B Adjudications; Premium Processing Remains Suspended


Related Links:

> Sen Rounds Comments on Seasonal Employment Visas
> H-2B visa freeze a problem for hotels, restaurants
> Warner, Kaine say stay on H2B visa freeze will help seafood industry
> Colorado employers scramble as feds freeze worker visas
> Injunction may ease H2B visa logjam

Impact of New Americans (2015) - Alabama, Arizona & California

March 18, 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; Alabama, Arizona & California.

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
Arizona
California

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 - 3/1/15

March 17, 2015

Administrative Appeals Office (AAO) Processing Times were released with processing dates as of 3/1/15.

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.

*Current = 6 months or less

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


Source of Information:

USCIS.gov, (3/3/15), AAO Processing Times

AILA Doc. No. 15030903. (Posted 03/09/15)

MVP "Immigration Q & A Forum" - This Friday, March 20, 2015

March 16, 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, March 20, 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.

On April 1, 2015, USCIS will start accepting H-1B Petitions for FY2016

March 13, 2015

U.S. Citizenship and Immigration Services (USCIS) announced on Thursday, March 12th that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2016 cap on Wednesday, April 1, 2015. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The cap (the numerical limitation on H-1B petitions) for FY 2016 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

USCIS stated that it is possible that the H-1B cap will be met in the first 5 business days! Also be advised that premium processing for cap-subject H-1B petitions will begin no later than May 11, 2015. See the USCIS’s Premium Processing section for more details.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B Fiscal Year (FY) 2016 Cap Season web page or call the National Customer Service Center at (800) 375-5283.

The MVP Law Group has successfully handled H1B petitions for a variety of clients ranging from the straight forward to the complex. Please feel free to contact one of our knowledgeable attorneys to discuss your immigration needs and help you effectively with your H1B processing. Our experienced Immigration Attorneys can help you devise an appropriate strategy for the H1B FY2016 cap season.


Source of Information:

USCIS.gov, (3/12/15), Press Release:
USCIS Will Accept H-1B Petitions for Fiscal Year 2016 Beginning April 1, 2015


Related Links:

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

Visa Bulletin - April 2015

March 12, 2015

The Department of State has released its latest Visa Bulletin.

Click here to view the April 2015 Visa Bulletin

As projected by the U.S. Department of State, the April 2015 Visa Bulletin shows the EB2 date for nationals from India moved from 1/1/07 to 9/1/07; the EB3 date for nationals from India made a small movement from 1/1/04 to 1/8/04; the EB2 for Chinese Nationals moved from 9/1/10 to 4/1/11; the EB3 for Chinese Nationals decreased from 10/22/11 to 1/1/11; and EB3 for WW moved from 6/1/14 to 10/1/14; and the F2A category moved from 6/22/13 to 8/1/13, except Mexico which moved from 5/22/13 to 7/8/13. 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.