BALCA Discusses Substantially Equivalent Alternative Requirements

June 30, 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 Software Engineer.”

The CO denied the labor certification stating the alternative requirements for the position were different (not substantially equivalent) from the primary job requirements on the ETA Form 9089. The Employer mentions as an alternative requirement for this position - 12 years of related experience as being equivalent to possessing a Bachelor’s degree. On the Form, the Employer lists the “primary requirements of a Bachelor’s degree in Engineering, Electronic Engineering, or a closely related field, and 60 months of experience” in the job offered. The CO cited a violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating it only listed one education and experience requirement; therefore, it did not accept an alternative combination of education & experience. They argued that their recognition of 12 years of experience as the equivalent of a bachelor’s degree is a widely used standard in the IT industry and amongst U.S. educational institutions.

After receiving the Employer’s request for reconsideration, the CO maintained his decision to deny certification and forwarded the case to BALCA. In his letter to BALCA, the CO contested the Employer’s statement that “three years of work experience equals one year of college education.” When validating the equivalency of the employer’s alternative requirements against the primary requirements, Specific Vocational Preparation (SVP) level is calculated utilizing the detailed SVP guidance provided in the administrative directive, Field Memorandum (FM). Per the FM, a Bachelor’s degree is the equivalent of two years of work experience.

Upon review, BALCA confirmed the denial because they believed the Employer’s primary and alternative requirements were not considerably equivalent. The Board also stated there was “nothing in the PERM regulations, regulatory history, or the Field Memorandum to support a finding that three years of experience without a degree is the equivalent of one year of college/university level credit.”

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

June 29, 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, Alaska & Arizona.

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

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 LAW GROUP – Immigration Q&A Forum, Friday, June 26, 2015

June 26, 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
Is there a grace period for applying for an H-1B transfer after termination from a previous sponsoring employer?

Answer #1
According to the USCIS, there is no grace period. In practice, a period of two weeks is a reasonable period of time in order to transition to new employment; however, the regulations do not provide for a grace period.


Question #2 – Adjustment of Status (AOS)
My priority date is current and I want to file my I-485 application. Do I have to pay for both Employment Authorization and Advance Parole?

Answer #2
From the USCIS website:
Please note that, if you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization on Form I-765 and/or advance parole on Form I-131. You may file these forms together. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action, receipt as evidence of the filing of an I-485. If you filed your Form I-485 prior to July 30, 2007, you must pay the fees associated with Forms I-765 and/or I-131 when you file.


Question #3 – Employment Based Immigration
If my Labor Application is denied, can we appeal the decision?

Answer #3
Yes; however, your employer and Immigration Attorney should review the reasons for denial and determine whether or not the DOL wrongfully denied the ETA 9089. If there is a basis supported by case law and/or documentation for a reversal of the DOL’s decision, the employer may file a Request for Reconsideration with the DOL within the specified time period.


Question #4 – H1B Nonimmigrant Work Visa
I have vacation plans to go out of the country the first week of July. Can I file my H-1B extension petition prior to leaving?

Answer #4
More information is needed in order to provide a sufficient answer. When does your current H-1B expire? Generally, we recommend that you do not travel unless it is an emergency, while a case is pending with the USCIS.


Question #5 – Business Visitor Visa
How long can someone stay in US on a Business Visa (B1/B2)?

Answer #5
You may receive a Visitor Visa valid for 10 years; however, the maximum duration of stay in the United States on a B1/B2 visa is 6 months.


Question #6 – H1B Nonimmigrant Work Visa
Some of our H-1B employees are nearing their 6th year in visa status. They have approved I-140s filed by different employers. Can we use those approved I-140s to get 3 year extensions with our company?

Answer #6
Yes, as long as the I-140 petition is not revoked due to misrepresentation or fraud.


Question #7 – General
How can I find out the Prevailing Wage on jobs in my county?

Answer #7
Go to http://quickfacts.census.gov/cgi-bin/qfd/lookup to determine the county. Go to http://www.flcdatacenter.com/OesWizardStart.aspx, select the State, then the County, then the occupation from the drop down list and hit SEARCH.


Question #8 – Family Based Immigration
At what stage of the Family Based Green Card process does the priority date get assigned?

Answer #8
The priority date gets assigned once the I-130, Immigrant Petition for Alien Relative is filed with the USCIS.


Question #9 – Sponsorship
What is an affidavit of support?

Answer #9
From the USCIS website:
An affidavit of support is a document an individual signs to accept financial responsibility for another person, usually a relative, who is coming to the United States to live permanently. The person who signs the affidavit of support becomes the sponsor of the relative (or other individual) coming to live in the United States. The sponsor is usually the petitioner of an immigrant petition for a family member.
An affidavit of support is legally enforceable; the sponsor's responsibility usually lasts until the family member or other individual either becomes a U.S. citizen, or can be credited with 40 quarters of work (usually 10 years).
The law concerning affidavits of support is found in Immigration and Nationality Act (INA) sections 212(a)(4) and 213A. The provisions are codified in Title 8 of the Code of Federal Regulations (CFR) at 8 CFR 213a.


Question #10 – H4 EAD for Certain Spouses of H1B Nonimmigrants
Is there a deadline to apply for the H-4/EAD Visa?

Answer #10
No. Eligible applicants may apply at any time.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, July 10, 2015!

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

DHS Announces TPS Designation for Nepal

June 25, 2015

On Wednesday, June 24, 2015, Secretary of Homeland Security, Jeh Johnson announced that the country of Nepal will be designated for Temporary Protected Status (TPS) for 18 months. This decision was based on the conditions within Nepal caused by the April 25th, magnitude 7.8 earthquake and the many aftershocks that followed. This status will allow eligible Nepalese nationals residing in the United States to apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The 180-day TPS registration period begins June 24, 2015 and runs through December 21, 2015. The Federal Register notice, “Designation of Nepal for Temporary Protected Status” published June 24, 2015 provides further details and procedures for applying for TPS.

The TPS designation for Nepal is effective starting, June 24, 2015, and will be in effect through December 24, 2016. This designation means that, during the designated period, eligible nationals of Nepal and people without nationality who last habitually resided in Nepal will not be removed from the United States and may receive an Employment Authorization Document (EAD), which will allow them to work within the United States.

For further details please review the USCIS News Release, “DHS Announces Temporary Protected Status Designation for Nepal”.


The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.


Source of Information:
USCIS.gov, 6/24/15, News Release:
DHS Announces Temporary Protected Status Designation for Nepal

USCIS.gov, 6/24/15, Web Page:
Temporary Protected Status

USCIS Teleconference - Original Guidelines for DACA and Renewal Process – 6/24/15

June 24, 2015

The United States Citizenship and Immigration Services (USCIS) will be a holding a free Teleconference on Wednesday, June 24, 2015 between 2:00pm to 3:00pm (EST). The subject of this event will be their continued processing of requests under the original guidelines for Deferred Action for Childhood Arrivals (DACA) and the DACA renewal process. There will also be a Q&A session at the end of the teleconference.

The federal court temporarily enjoined the USCIS from implementing the new expanded DACA guidelines under President Obama’s Executive Actions on Immigration (11/20/14).

Event Information:
DATE: Wednesday, June 24, 2015
TIME: 2:00pm to 3:00pm (EST)

To register for this session, please follow the steps below:
• Visit USCIS's 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 information.

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, 6/16/15, National Engagement:
Deferred Action for Childhood Arrivals (DACA) - Original Guidelines for DACA and Renewal Process

Teleconference Invitation

Updated Service Center Processing Times (as of 4/30/15)

June 23, 2015

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 6/15/15 with processing dates as of 4/30/15.

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.

MVP "Immigration Q & A Forum" - This Friday, June 26, 2015

June 22, 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, June 26, 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.

DC-Area Immigrants Will Receive Free Legal Consultations from Immigration Attorneys

June 19, 2015

On Saturday, June 20, 2015, the American Immigration Lawyers Association (AILA) and their local Washington, DC Chapter have partnered with some local charities to offer free immigration law services. The event is AILA’s fifth annual Pro Bono Clinic which is being held in conjunction with AILA's 2015 Annual Conference on Immigration Law! This Free Legal Clinic will take place in Washington, D.C. at Carlos Rosario International Public Charter School. There will be dozens of Immigration Attorneys from around the country available to answer questions and assess each participant case as it pertains to Immigration Law.

AILA Executive Director Crystal Williams stated, "The Washington, DC, area is both historic and vibrant; it's a place where immigrants have flourished and where the three branches of our government make, execute, and rule on policies affecting immigrants. We welcome the chance to join our partners in offering knowledge and expertise to help families and individuals in the area,"

All interested individuals are encouraged to attend this event, including members of the press. Immigrants interested in speaking with an attorney are encouraged to sign up in advance.

Saturday, June 20, 2015
10:00AM-1:00PM
Location: Carlos Rosario International Public Charter School
1100 Harvard St., NW
Washington, DC 20009

Volunteer interpreters in Spanish, French, Amharic, Russian, Uzbek, Ukrainian, Tagalog, Farsi, and Italian will be in attendance.


Source of Information:
AILA.org, 6/15/15, News Release (AILA Doc. No. 15061505):
AILA: DC-Area Immigrants Will Receive Free Legal Consultations from Immigration Attorneys

AILA’s fifth annual Pro Bono Clinic – Advanced Sign-up


Related Links:
AILA's 2015 Annual Conference on Immigration Law

American Immigration Lawyers Association - DC Chapter

Carlos Rosario International Public Charter School

DACA Renewal - Don’t Let Your Work Permit Expire

June 18, 2015

When your initial two-year grant of deferred action for childhood arrivals (DACA) expires, you may request a renewal. USCIS suggests you submit your DACA renewal request up to150 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document (EAD). Some people are waiting too long to request their DACA renewal or not submitting the correct forms and fees and as a result their EAD could expire before USCIS processing their DACA renewal.

You can lessen the chance that this may happen if you:
File on time. Submit your renewal request between 150 days and 120 days before the expiration date listed on your current Form I-797 DACA approval notice and Employment Authorization Document.
Correctly submit all required forms and fees. USCIS will reject your renewal request unless you properly submit:
- Form I-821D, Consideration of Deferred Action for Childhood Arrivals;
- Form I-765, Application for Employment Authorization;
- Form I-765 Worksheet; and
- Required fees of $465
Avoid processing delays. Be sure to submit:
- Any new documents and information related to removal proceedings or criminal history that you have not already submitted to USCIS in a previously approved DACA request,
- Proof of advance parole if you have traveled outside the United States since you filed your last DACA request that was approved; and
- Proof of any legal name change.
Respond to Requests for Evidence. USCIS may deny your renewal request if you do not respond to a Request for Evidence in a timely manner.

Note: For complete instructions, go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page.


Source of Information:
USCIS.gov, 6/5/15, News Alert:
Don’t Let Your Work Permit Expire; Follow These DACA Renewal Tips

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

USCIS.gov, 6/15/15, Web Page:
Renew Your DACA

BALCA Reverses Denial Finding Job Order Form Deficient

June 17, 2015

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 “Business Development Manager-IV.”

After receiving and reviewing an Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present copies of its recruitment records. The Employer responded with its New Jersey State Workforce Agency (SWA) Job order that was administered through America’s Job Exchange (AJE).

Once the CO received the audit materials, he denied certification of the application. The CO cited the position communicated in its recruitment advertising did not match the one listed on the Employer’s ETA Form 9089 in violation of PERM Regulations 656.17 (f)(6). In its Labor Application, the Employer stated the position required “a Master’s Degree and 12 months of experience in the job offered.” In its SWA job order, the experience requirement listed “Mid-Career (2-15 years).”

The Employer sent a reconsideration request to the CO. In its argument, the Employer stated it had entered 12 months on the New Jersey job order but the AJE system converted it to 2-15 years. As evidence, the Employer printed a copy of the AJE instructions that mentions the automatic conversion of anything entered from 12 to179 months to mid-career. The CO denied the request. Even though the AJE may alter the experience into a pre-determined scale, the CO declared that the job submission form incorporated a free-form field so the employer could enter its own requirements.

After BALCA’s examination of the case, it was overturned. The Board believed the Employer made an effort to run its recruitment in compliance with PERM regulations. They believed there was no way to avoid the AJE system of conversion. BALCA felt the CO speculated that the Employer could have inserted information into a free-form field, but there was nothing in the record to support such speculation. The case was remanded for certification.

Revised - Updated Service Center Processing Times (as of 3/31/15)

June 16, 2015

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 6/9/15 with processing dates as of 3/31/15.

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.

USCIS Reopened H-2B Cap for the Second Half of FY2015

June 15, 2015

On Friday, June 5th, the USCIS reopened the H-2B cap for the second half of the fiscal year (FY) 2015. They originally closed the H-2B cap on Thursday, March 26, 2015 announcing that the cap had been reached. USCIS will accept Form I-129, Petition for a Nonimmigrant Worker, requesting new H-2B workers with an employment start date between April 1 and September 30, 2015.

USCIS has to estimate when they feel they have received enough requests to fulfill the H-2B visa limit for the fiscal year. After monitoring the issuance of H-2B visas in collaboration with the U.S. Department of State (DOS),, they determined they had received fewer requests than expected and have openly stated that there are available H-2B visas remaining for the second half of FY2015.

For more detailed information about this USCIS news alert, please read, “USCIS to Reopen H-2B Cap for the Second Half of Fiscal Year 2015”.


Source of Information:
USCIS.gov, 6/5/15, News Alert:
USCIS to Reopen H-2B Cap for the Second Half of Fiscal Year 2015

USCIS.gov, 6/5/15, Web Page:
Cap Count for H-2B Nonimmigrants


Related Link:
BaltimoreSun.com, 6/5/15, Article:
Md. seafood businesses stand to benefit from discovery of unused guest worker visas