BALCA Upholds Denial Due to Lack of Travel Language in NOF

September 2, 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 “Software Quality Engineer.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. After the Employer responded, the CO denied certification of the application for violating PERM Regulation 20 CFR 656.17 (f)(4) among other grounds. PERM regulation 656.17 (f)(4) requires that newspaper ads “must indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The Employer’s Notice of Filing and recruitment efforts listed Santa Clara, California ONLY; however, the ETA Form 9089 mentioned Santa Clara, California, and “various unanticipated locations throughout the U.S.”

Even though the Employer sent a reconsideration request to the CO, he delivered a second denial and forwarded the case to BALCA for review. The Employer argued that the position did not necessitate travel and only listed it on the ETA Form to “allow for participation in events outside of the employer’s offices.” They insisted that the travel requirement was optional.

Upon review of this case, BALCA upheld the CO’s denial of labor certification. The Board believed the Employer had clearly violated PERM Regulation 20 CFR 656.17 (f)(4) by not informing US job applicants of the possibility of traveling to various locations. If US applicants knew about the option of various company locations, BALCA thought more potential applicants might have applied for the position.


Celebrating Labor Day!

September 1, 2014

“The basic bargain of America is that no matter who you are, where you come from or what you look like, if you work hard & play by the rules, you can make it.” -- Labor Secretary Tom Perez


The Labor Day holiday in United States is celebrated the first Monday in September. Labor Day was really created by the national labor movements to celebrate the American worker and their achievements, both social and economic! Each of us that work every day, immigrant or citizen, this is our celebration! For more information about the history of Labor Day review the Department of Labor’s (DOL) web page, “History of Labor Day".

MVP Law Group would like to thank workers worldwide for their contributions to our society!

MVP LAW GROUP – Immigration Q&A Forum, Friday, August 29, 2014

August 29, 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 - General
I recently get a letter of "Notice of Intent to Deny" from USCIS for my I-140 application. What is the difference between the Request for Evidence and Notice of Intent to Deny?

Answer #1
A Request for Evidence (RFE) is issued when an application/petition is lacking required documentation/evidence (initial evidence) or the officer needs more documentation/evidence (additional evidence) to determine an applicant's eligibility for the benefit sought. The USCIS may send a request for evidence at any stage of review. The request will indicate what evidence or information is needed for the USCIS to fully evaluate the application or petition. The notice will explain where to send the evidence and will give the deadline for the response. The application or petition will be held in suspense during that time.

A Notice of Intent to Deny (NOID) is issued when the USCIS has determined that the applicant is ineligible for the immigration benefit requested. The USCIS will allow the applicant an opportunity to overcome this USCIS determination by responding to the NOID within a specific time frame with specific evidence to demonstrate that he or she is eligible for the benefit sought.


Question #2 – H1B Nonimmigrant Work Visa
Currently, I am a H-1B holder working for a medical billing consulting company. I may be laid-off soon. Is there a USCIS policy giving a 60-day grace period to an H-1B laid-off worker to look for new job?

Answer #2
No, there is no 60 day grace period given by the USCIS, as the regulations are silent on this issue. This type of situation is viewed by the USCIS on a case-by-case basis. It is important that you speak with an Immigration Attorney concerning the specifics of your situation, feel free to contact our office.


Question #3 - DACA
I have DACA status. Do I need advance parole to travel outside of the United States?

Answer #3
Yes! DO NOT attempt to leave the United States without obtaining prior approval for international travel from the USCIS.


Question # 4 – Green Card
What is the purpose of the immigration medical examination? I have one scheduled next week for my I-485 application of status adjustment. How do I submit the exam results to USCIS?

Answer #4
According to the Department of State, Medical eligibility is a requirement of INA Sections 212(a) and 221(d). Failure to provide required information may cause delay or denial of immigrant visas. If an immigrant visa is not issued, all medical eligibility forms will be treated as confidential under INA Section 222(f).
Print out and bring the most recent version of Form I-693, Report of Medical Examination and Vaccination Record, to your medical exam appointment: Fill out Part 1 of Form I-693 but do not sign until the civil surgeon instructs you to do so. The civil surgeon will use Form I-693 to document the results of your medical exam. The designated civil surgeon will complete, sign and seal Form I-693 and any supporting documents in an envelope. You must submit the sealed envelope to USCIS as directed in the Form I-693 instructions. IMPORTANT: Do not break the seal or open this envelope. USCIS will not accept Form I-693 if it is not in a sealed envelope or if the envelope is altered in any way.


Question #5 – Family Based Immigration
My mother filed an I-130 for me and it has been approved. I am an unmarried woman over 21. Many have told me to wait for a visa number to be available before filing for an adjustment of status. However, I want to know if in the meantime, can I file an I-765 Employment Authorization?

Answer #5
Unless your priority date is current, the date your I-130 petition was accepted by the USCIS for processing, you cannot file for adjustment of status, nor can you file for Employment Authorization. You must wait your turn in line according to the preference category as displayed on the monthly visa bulletin.


Question #6 – Green Card
Since 1985, I have had a green card. There are some family issues and I need to return home to England for about a year. Do I file advance parole or an re-entry permit?

Answer #6
A Re-entry permit! You may want to speak with an Immigration Attorney to discuss your eligibility for Naturalization, feel free to contact our office.


Question #7 – H1B Nonimmigrant Work Visa
My company is in the process of merging with a larger company, and there may be some changes to my job duties or even my job location. I am on H-1B and they have also filed for my Green Card in EB2. Do you think my new employer should file an amended H-1B petition to the USCIS or a new PERM?

Answer #7
This type of determination is made on a case-by-case basis as several factors must be considered. Your employer should speak with a Qualified Immigration Attorney to discuss the possible immigration related consequences of a merger/acquisition.


Question #8 – Green Card
I am working with an EAD. My I-485 remains pending and is based on Employment in EB2. Is it possible for me to register and run an LLC company in partnership with another Green Card holder?

Answer #8
More information is required in order to provide an accurate answer given your particular situation. Are you currently working for your sponsoring employer? If not, has an AC21 portability request been filed? Etc. Please feel free to contact our office to further discuss your options and any risks that may be involved.


Question #9 – H1B Nonimmigrant Work Visa
For an H-1B transfer from a company to another company, how soon can the immigrant employee start to work for the new employer?

Answer #9
It depends upon the type of company the applicant is transferring from/to; however, generally speaking the employee can start to work for the new employer as soon as USCIS has accepted the H-1B transfer filing.


Question #10 – Family Based Immigration
A few months ago, I filed an I-130 petition for my spouse based on my LPR status. Last month, I just got naturalized. How much time do you think it will take for an approval of my I-130 petition?

Answer #10
Have you contacted the USCIS to inform them of this material change in your status, which would move your spouse from a preference category relative to an immediate relative? According to the USCIS posted processing times, it appears 6-8 months for processing of the I-130 petition.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 12, 2014!

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

China EB-5 “Unavailable” for Remainder of FY2014

August 28, 2014

On Saturday, August 23, 2014, Charles Oppenheim, Chief of the Department of State (DOS) Immigrant Visa Control and Reporting Division announced that as of that date the maximum number of E-B5 visas has been reached for China for FY2014. He made the announcement at the American Immigration Lawyers Association’s (AILA) 2014 EB-5 Conference in Chicago, IL. He stated that all China EB-5 applicants already scheduled for interviews for the rest of August and September still had EB-5 visa numbers allotted to them.

USCIS will continue to accept and process new China EB-5 cases but these cases will be held in the Visa Office's "Pending Demand" file until October 1, 2014, the beginning of the new Fiscal Year (FY2015). All of China EB-5 cases held in the "Pending Demand" file will be processed under FY2015 limits. Please note that this announcement only affects the China EB-5 category.

Congress created the Immigrant Investor Program (EB-5) in 1990 for job creation and capital investment within the United States by foreign investors.


Source of Information:
LexisNexis® Legal Newsroom - Immigration Law:
DOS Alert: China EB-5 “Unavailable” for Remainder of FY2014

AILA InfoNet Doc. No. 14082360 (posted 8/23/14):
DOS Alert: China EB-5 “Unavailable” for Remainder of FY2014

USCIS.gov, 7/3/12, Web Page:
EB-5 Immigrant Investor

H-2B Cap Count UPDATE - 8/22/14

August 27, 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 the second half of FY 2014 (April 1 - September 30) is 33,000. As of the last count (8/22/14); 25,915 beneficiaries have been approved and 815 are pending for a total of 26,730.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (8/22/14); 3,031 beneficiaries have been approved and 765 are pending for a total of 3,796.

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


Source of Information:

- USCIS.gov (8/12/14) Web Page

- AILA InfoNet Doc. No. 13100840 (posted 8/26/14)

BALCA Upholds Denial of Certification Where Travel Not Mentioned in Ad

August 26, 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 “Accountants and Auditors.”

After receiving & reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit notification. Once the Employer responded, the CO denied certification of the application for multiple reasons. First and foremost, the job description listed in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 20 C.F.R. § 656.10 and 656.17 (f)(3). These regulations require that an advertisement “provide a description of the vacancy specific enough to apprise a US worker of the job opportunity for which certification is sought.” The CO also cited the employer’s website advertising neglected to mention travel requirements that were listed on its ETA Form 9089. On the Employer’s ETA Form, it specified, “various unanticipated Deloitte locations and client sites nationally.”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated the U.S. Department of Labor (DOL) made a mistake in its ruling. The CO delivered a second denial and forwarded the case to the BALCA for review.

After BALCA’s examination of the case, the board sided with the CO. The Board deemed the Employer clearly violated the PERM regulations “by not specifically apprising US workers of the job opportunity.” On the ETA Form 9089, the Employer clearly listed the travel requirements but neglected to mention these requirements in its Philadelphia Inquirer newspaper advertisements. In its defense, the Employer argued the language listed on the form was not travel requirements but should have been interpreted as the position was open at various nationwide locations. BALCA firmly believed US workers did not view an accurate description of the job in any of the Employer’s advertising.

MVP "Immigration Q & A Forum" - This Friday, August 29, 2014

August 25, 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, August 29, 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.

Characteristics of Individuals Requesting and Approved for DACA

August 22, 2014

This is a unique statistical report, filled with (8) tables detailing the personal characteristics about Deferred Action for Childhood Arrivals (DACA) applicants and recipients. The U.S. Citizenship and Immigration Services (USCIS) have put together this characteristics data in a way that still protects their individual privacy.

The data is limited to the following characteristics:
• Age groups (broad ranges);
• Sex;
• Country of birth;
• Marital status categories (broad); and
• Geographic location at the time of filing (Statistical Areas).

The DACA program started on August 15, 2012. The data used for this report covers a 13 and half month period: August 15, 2012 to September 30, 2013.

Please view the (.PDF) USCIS Report, “Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA)” for more details.

For further information regarding Deferred Action for Childhood Arrivals, please visit www.uscis.gov/childhoodarrivals.


Source of Information:
USCIS.gov, Statistical Report (.PDF):
Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA)


Extra - List of tables presented (August, 2012 to September, 2013):
- Table 1. DACA Requests Accepted and Approved by Requestor Age Group and Sex
- Table 2. DACA Requests Accepted and Approved by Requestor Age Group and Marital Status
- Table 3. Number and Percent of DACA Requests Accepted by Requestor Country of Birth, Age Group, and Sex
- Table 4. Number and Percent of DACA Requests Accepted by Requestor State, Age Group, Sex, and Country of Birth
- Table 5. Number and Percent of DACA Requests Accepted by Requestor Metropolitan or Micropolitan Statistical Area1, Age Group, Sex, and Country of Birth
- Table 6. Number and Percent of DACA Requests Accepted between August, 2012 to September, 2013 by Approval Status, Requestor Country of Birth, Age Group, and Sex
- Table 7. Number and Percent of DACA Requests Accepted between August, 2012 to September, 2013 by Approval Status, Requestor State, Age Group, Sex, and Country of Birth
- Table 8. Number and Percent of DACA Requests Accepted between August, 2012 to September, 2013 by Approval Status, Requestor Metropolitanor Micropolitan Statistical Area1, Age Group, Sex, and Country of Birth

DACA Statistics – DACA Quarterly Report FY2014-Q3

August 21, 2014

The USCIS statistics on DACA Initial cases for the third quarter of FY2014, from 4/1/14 to 6/30/14 show a total of 32,558 DACA requests accepted for processing, (N/A) biometric services appointments scheduled, 27,642 requests approved, and 3,685 requests have been denied.

The USCIS statistics on DACA Renewal cases for the third quarter of FY2014, from 4/1/14 to 6/30/14 show a total of 10,068 DACA requests accepted for processing, (N/A) biometric services appointments scheduled, 87 requests approved, and 2 requests have been denied.

This DACA Report includes data for FY2012, FY2013 and FY2014 (YTD). The USCIS statistics on DACA cases from 8/12/12 to 6/30/14 show a cumulative total of 685,544 DACA requests accepted for processing, 667,296 biometric services appointments scheduled, 580,946 requests approved, and 23,883 requests have been denied.

The cumulative data also shows the number of accepted and approved requests from the top countries of origin and the top states of residence. Mexico was the top county of origin with 526,816 received to date and 449,921 approved. California was the top state of residence with 196,131 received to date and 169,875 approved.

Please view the (.PDF) USCIS Report, “Deferred Action for Childhood Arrivals Process (Through Fiscal Year 2014, 3nd Qtr)” for more details.

For further information regarding Deferred Action for Childhood Arrivals, please visit www.uscis.gov/childhoodarrivals.


Source of Information:

USCIS.gov, 8/19/14, DACA data:
Deferred Action for Childhood Arrivals Process (Through Fiscal Year 2014, 3nd Qtr)
Data as of 6/30/14
Published 8/19/14

USCIS Stakeholder Teleconference – DACA Renewal Process – 8/21/14

August 20, 2014

The United States Citizenship and Immigration Services (USCIS) will be holding a stakeholder teleconference on Thursday, August 21, 2014 between 2:30 to 4pm (EST). The subject of the event will be to discuss the Deferred Action for Childhood Arrivals (DACA) renewal process and will include a Q&A session. When their initial two-year grant of DACA expires, they may request a renewal using the revised USCIS Form I-821D. For more information on this teleconference please review the Meeting Invitation.

Event Information:
DATE: Thursday, August 21, 2014
TIME: 2:30 – 4:00 pm (EST)

To Join the Session by Phone:
Toll-Free Call-in Number: 1-800-369-1949
Passcode: DACA
Note: Call in 10 to15 minutes before the start time


Source of Information:

USCIS.gov, 8/14/14, National Engagement:

- Deferred Action for Childhood Arrivals (DACA) Renewal Process

- Meeting Invitation

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)


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).

H-2B Cap Count UPDATE - 8/8/14

August 19, 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 the second half of FY 2014 (April 1 - September 30) is 33,000. As of the last count (8/8/14); 25,442 beneficiaries have been approved and 1,235 are pending for a total of 26,677.

The H-2B cap limit for first half of FY 2015 (October 1 - March 31) is 33,000. As of the last count (8/8/14); 1,312 beneficiaries have been approved and 950 are pending for a total of 2,262.

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


Source of Information:

- USCIS.gov (8/12/14) Web Page

- AILA InfoNet Doc. No. 13100840 (posted 8/13/14)

BALCA on Single Advertisements for Multiple Jobs Opportunities

August 18, 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 “Marketing Manager.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO ordered the Employer to present copies of its recruitment efforts. The Employer provided a copy of its notice of filing, job order with the Washington State Workforce Agency (SWA), as well as newspaper ads placed in the Seattle Times. In addition, they submitted a copy of the company’s recruitment report.

After reviewing the recruitment data, the CO denied Certification because he believed it violated PERM regulation 20 CFR 656.17(f)(6), which provides that additional language not found on the ETA Form 9089 exceeds the job requirements for the position. The CO stated the Employer’s Notice of Filing (NOF), SWA job order, newspaper advertisements and web advertisements all listed “may require employer-reimbursed travel.” The phrase was not listed on the Employer’s 9089 form.

The Employer sent a reconsideration request to the CO. In the argument, the Employer declared that its NOF, SWA job order, newspaper advertisements and web advertisements were used to hire for many positions. Some of these positions did require travel while others did not. The Employer argued that the phrase “may require employer-reimbursed travel” does not create an obligatory travel condition for all of its job openings. They strongly believed that its hiring practices complied with the Department of Labor’s regulations on advertising for multiple positions. The DOL had previously provided that the language “some positions may require travel” may be utilized for recruitment covering multiple positions when some of those positions have no travel requirement.

Upon reconsideration of the employer’s arguments, the CO confirmed his denial of the labor certification. The CO thought the use of “open-ended” terms such as “may require travel” could be interpreted as a compulsory job requirement for applicants. The CO stated that the whole reason for SWA job orders, as well as the additional recruitment efforts, is to test the labor market. If any advertising is placed for the job(s), it may not contain any job requirements or language that is not listed on the ETA 9089 Form. The CO forwarded the case to BALCA for further examination. In the CO’s statement of position, he referred to the Employer’s lack of clarity in the advertisements - the Employer did not distinguish which Marketing Managers require travel and which ones do not.

After BALCA’s examination of the case, they reversed the CO’s decision. The BALCA board believed that the Employer’s NOF, SWA job order and advertisements did not include a job requirement that surpassed the one recorded on the ETA Form 9089. They found that the phrase “may require employer-reimbursed travel” was indistinguishable from the DOL-endorsed phrase “some positions may require travel.” BALCA stated it was obvious from the advertisements that “not all of the Marketing and Product Manager positions required travel.” The board did not think any of the advertisements were misleading and would prevent any US job applicant from applying for the positions.