Posted On: December 17, 2008

Employment-Based Adjustment Case Being Transferred to the NBC?

If you have received a transfer notice from one of the USCIS service centers that your case is being transferred to the National Benefits Center (NBC), do not be alarmed . The reason your case is being transferred is that it is being scheduled for an interview.

For interview waiver criteria and the reasons a case may be sent for an interview, please click here.

Posted On: December 16, 2008

Updated H-2B Visa Count for the Second Half of Fiscal Year 2009

The H-2B visa category allows U.S. employers in industries with peak load, seasonal or intermittent needs to augument their existing labor force with temporary workers.

Congress has set the numerical limit for H-2B visas at 66,000 per fiscal year. The Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the annual numerical limitations of 66,000 into two halves. Accordingly, the 33,000 cap for the first half of FY 2009 was satisfied on July 29, 2008.

As of December 12, 2008, 18,367 petitions have been counted towards the 33,000 cap for the second half of FY 2009. Applicants interested in petitioning for an H-2B visa are encouraged to act fast as time is running out.

Posted On: December 15, 2008

USCIS Revises Employment Eligibility Form (I-9)

U.S. Citizenship and Immigration Services (USCIS) submitted to the Federal Register an interim final rule that will streamline the Employment Eligibility Verification process.

The interim final rule narrows the list of acceptable identity documents and further specifies that expired documents are not considered acceptable forms of identification. Specifically, the interim final rule eliminates Forms I-688, I-688A, and I-688B from List A because the USCIS no longer issues these cards and all that were in circulation have expired. Additionally, the rule adds to List A foreign passports containing specially- marked machine-readable visas, and the new U.S. passport. The rule also makes other technical changes to update the list of acceptable documents. The revised Form I-9 includes additional changes, such as revisions to the employee attestation section, etc.
After publication in the Federal Register, the public will have 45 days to comment on the final rule.

Read the Interim final rule

For Questions and Answers regarding the revised Form I-9, please click here.

Posted On: December 12, 2008

Improving the Processing of "Schedule A" Nurse Visas

The nursing shortage in the United States is becoming increasingly problematic and may adversely affect the health care industry. The Citizenship and Immigration (CIS) Ombudsman has been fully informed by nursing organizations and stakeholders about the period of time it takes for a foreign nurse to be admitted to the Unted States to work. Visa availability continues to be the principal obstacle for many immigrants and non-immigrants seeking employment in the United States, and the number of visas available can only be addressed through legislation.

Accordingly, the CIS Ombudsman has recommended that United States Citizenship and Immigration Services (USCIS) separate and prioritize Schedule A green card applications so that they can be expedited, without the requirement of a written request, upon immigrant visa availability; and centralize Schedule A nurse applications at one designated USCIS service center to facilitate more efficient and consistent processing of Schedule A applications.

Additionally, the CIS Ombudsman has suggested that USCIS regularly communicate with the Department of Labor (DOL) and develop points of contacts at DOL to discuss concerns and direct inquiries regarding the processing of nurse immigration application.

Click here to read the full recommendation of the CIS Ombudsman.

Posted On: December 11, 2008

January 2009 Visa Bulletin

The Department of State has released its latest Visa Bulletin. The January 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India. Click here to view the January 2009 Visa Bulletin.

Posted On: December 10, 2008

USCIS Published Religious Workers Final Rule

The United States Citizenship and Immigration Services (USCIS) recently issued a final rule in the Federal Register amending various aspects of the religious workers program. The final rule amends the regulations to improve the Department of Homeland Security's (DHS's) ability to detect and deter fraud and other abuses in the religious worker program. The final rule applies to both special immigrants and nonimmigrant religious workers . The published rule requires that religious organizations seeking the admission to the U.S. of nonimmigrant religious workers must file formal petitions with USCIS on behalf of such workers, and under the rule, the USCIS is obligated to conduct inspections, evaluations, verifications and compliance reviews of religious organizations to ensure the legitimacy of the petitioner and statements made in the petitions. Forms I-360 and I-129 have been revised and now require an employer attestation. These updated forms have been made available on the USCIS website.

Read the final rule as published in the Federal Register.

Posted On: December 9, 2008

BALCA upholds denial of Labor application – Unduly restrictive job requirements

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Dispatcher. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a limousine company filed a LC on behalf of the alien worker in March of 2005. The employer described the job position and requirements in the application as: coordinate schedules of limousines; report disruption to service using radiotelephone, and inspect mechanical malfunctions of vehicles along route and direct repair. Additionally, the employer required four years of experience for the position offered. In March of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification since the experience requirement exceeded the Specific Vocational Preparation (SVP) for the job as set forth in the Dictionary of Occupational Titles (DOT). The DOT listed the experience for the position as “over 1 year and up to 2 years” for Dispatchers, Except Police, Fire and Ambulance. The CO concluded that the job opportunity included an unduly restrictive job requirement in violation of the regulations. The CO provided three ways in which the employer could rebut its findings: submit evidence that the requirement arises from a business necessity; or show that the job requirement bears a reasonable relationship to the occupation in the context of the employer’s business and is essential to perform the job duties described by the employer, and that the job as currently described existed before the alien was hired; or reduce the requirements to the DOT standard. On rebuttal, the employer submitted no evidence in regards to what the CO had requested. The employer argued that the occupational title of Traffic Inspector – Dispatcher with an SVP of two to four years more closely matched the duties listed in the application. The employer based his argument on the similarities of the job duties. Thereafter, the CO issued its final determination denying certification. The CO found that the Employer’s rebuttal was a request to re-code the position to Traffic Inspector-Dispatcher, and the CO declined to approve that request. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that where the employer cannot document that the job requirement is normal for the occupation or that it is included in the DOT, the employer must establish business necessity for the requirement. The basis of the employer’s argument was that the job opportunity should have been coded as Traffic Inspector-Dispatcher which has a SVP 7 or two to four years of experience. The job requires coordinating the schedules of streetcars, buses, or railway transportation systems, and includes negotiations with local governmental personnel to eliminate hazards. However, the CO concluded that the position was that of Dispatcher which more closely resembled the job duties listed within the application for labor certification. Upon review of the three job descriptions, the Board agreed with the CO that the proper job code for the occupation in the application is that of Dispatcher.

Additionally, according to the regulations, an employer’s rebuttal evidence must rebut all of the findings in the NOF and that all findings not rebutted shall be deemed admitted. The Employer did not rebut the CO’s findings set forth in the NOF.

Accordingly, the CO properly denied labor certification .

Posted On: December 8, 2008

BALCA upholds denial of Labor application – not good faith recruitment

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Accountant. This LC was filed prior to the effective date of the “PERM” regulations.

The employer filed a LC on behalf of an alien worker in July of 2004. In the spring of 2006, the employer submitted its recruitment results indicating that nineteen resumes were received: some candidates did not have the requisite degree/experience, two candidates were found to be overqualified, and several other candidates were either unwilling to take the job or did not respond to contacts by the employer. Thereafter, in August of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification on the basis of the rejection of U.S. workers for other than lawful, job-related reasons. The CO found that the Employer had placed telephone calls to U.S. applicants and some of these were unsuccessful. The CO requested documentation of attempts to contact the referred applicants in a timely manner, and suggested that such documentation could include evidence such as certified mail receipts, itemized telephone bills or other documentation of timely contact which would establish good faith recruitment. The CO stated that failure to provide lawful, job-related reasons for their rejection was a violation of Federal regulations. The employer submitted its rebuttal arguing that it did contact the U.S. applicants, and asserting that it was in the process of obtaining its telephone bills. Additionally, the employer argued that their rejection of the candidates was consistent with normal business practices of the industry and its own normal practice. The CO did not accept the Employer’s argument regarding good faith recruitment, noting that placing unanswered telephone class without making additional attempts to contact U.S. applicants did not constitute good faith recruitment. Thereafter, the CO issued its final determination denying certification for the same grounds contained in the NOF. Subsequently, the Employer requested BALCA review.

Upon BALCA review, it was determined that both of the grounds cited by the CO for denying certification were supported by BALCA caselaw. First, an employer who does no more than make unanswered phone calls or leave a message on an answering machine has not made a reasonable effort to contact the U.S. worker, where the addresses were available for applicants; in such a case the employer should follow up with a letter – which may be certified mail, return receipt requested. Second, the Employer rejected at least two applicants as overqualified. The Board has repeatedly ruled that an employer who is recruiting pursuant to a labor certification application may not reject an applicant solely because that applicant is overqualified.

Accordingly, the CO properly denied labor certification .