Posted On: January 27, 2009

Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on January 23, 2009 with processing dates as of November 30, 2008.

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.

Vermont Service Center
Nebraska Service Center
National Benefits Center
California Service Center
Texas Service Center

Posted On: January 22, 2009

Update: Federal Contractors and the E-Verify System

Effective February 20, 2009, ALL federal contractors and subcontractors will be required to begin using the U.S. Citizenship and Immigration Services' (USCIS) E-Verify system. This program allows for employers to electronically verify the employment eligibility of their employees.

This new rule which is addressed in Executive Order 12989 reinforces the policy that the federal government does business with companies that have a legal workforce.

Specifically, this rule requires federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term.

To read the entire news release, please click here.

Posted On: January 21, 2009

DOL Administrative Review Board orders payment of back wages to H-1B visa holder

The Department of Labor’s (DOL) Administrative Review Board (ARB) recently upheld the final decision of an Administrative Law Judge (ALJ) who found that the petitioner failed to pay the H-1B beneficiary the required wage under the H-1B provisions of the Immigration and Nationality Act (INA).

The petitioner, a not-for-profit corporation that operates medical clinics sought the expertise of the beneficiary, a medical doctor. After interviewing the beneficiary, a “Physician Employment Agreement” was signed which reflected an annual wage of $125,000. Thereafter, an H-1B petition was filed to hire the beneficiary as a full time medical doctor with H-1B non-immigrant status for three years. A Labor Condition Application (LCA) was filed along with the petition on behalf of the beneficiary listing the prevailing wage as $118,222 for the position. The beneficiary began working for the petitioner in June 2004 and was allegedly terminated in March 2005. During the course of the beneficiary’s nine-months of employment, he was paid a total of $49,000 in wages. The $49,000 (or $65,333.33 per year) falls below both the $125,000 per year wage that the beneficiary contracted for and the prevailing wage of $118,222 listed in the LCA. The beneficiary thereafter reported the wage violation to the DOL’s Wage and Hour Division who conducted a hearing and entered a decision in favor of the beneficiary. The petitioner thereafter sought review of the decision by the ARB.

The ARB found the petitioner liable for back wages calculated using the prevailing wage rate of $118,222 per year for the beneficiary’s nine-month employment during which time he worked as assigned and made himself available for work. According to the regulations, when an employer signs and files an LCA, he is attesting that for the entire “period of authorized employment” the listed wage rate will be paid to the H-1B non-immigrant. One of the ways in which an employer may escape liability is if they effect a bona fide termination and inform the Department of Homeland Security (DHS) immediately, and where appropriate provide the nonimmigrant employee with payment for transportation home. In this case, a bona fide termination did not occur until November 2005, when DHS was informed of the revocation of the H-1B petition. Accordingly, the petitioner was liable for payment of wages until the time of termination. The petitioner should have paid the beneficiary a total of $88,666.47 in wages for the nine months in which he worked.

In summary, the ARB found the petitioner liable to the beneficiary for back wages in the amount of $39,666.47. Additionally, the beneficiary is entitled to pre- and post-judgment interest.

Posted On: January 20, 2009

Upgraded biometric technology in place at major U.S. ports of entry

Since 2004, the U.S. Department of Homeland Security’s (DHS) U.S.-VISIT program has utilized biometric technology at major U.S. ports of entry to facilitate visitor entry. Last week, DHS announced that upgraded biometric technology is in place at major U.S. ports of entry. The upgrade is a change from a two to a ten fingerprint collection standard. According to DHS, the 10 fingerprint collection standard makes the entry process faster and more accurate.

Currently, certain non-U.S. citizens arriving at U.S. air, land and sea ports of entry with nonimmigrant visas or those traveling without a visa as part of the Visa Wavier Program (VMP) are subject to U.S.-VISIT procedures.

As of January 18, 2009, the following additional non - U.S. citizens will be required to provide biometrics when entering or re-entering the United States:

• Lawful permanent residences of the United States (LPRs);
• Persons seeking admission on immigrant visas;
• Persons seeking admission as refugees and asylees;
• Canadian citizens who are currently required to obtain a Form I-94 (Arrival/Departure Record) upon entry or who require a waiver of inadmissibility to enter the U.S.;
• Persons paroled into the U.S.; and
• Persons applying for admission under the Guam VMP.

Click here to read the entire fact sheet issued by the DHS.

Posted On: January 16, 2009

AAO approved EB-2 petition - Foreign degree found equivalent to U.S. "M.D."

The Administrative Appeals Office (AAO) recently withdrew the decision of the Director, Texas Service Center (TSC) and approved the employment based immigrant petition.

The Petitioner is a hospital. The Petitioner sought to employ the beneficiary permanently in the position of Interventional Radiologist. The position on ETA Form 9089 listed the educational requirements for the position as “M.D.” which stands for “Doctor of Medicine.” The pertinent regulation states: “A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree. If a doctoral degree is customarily required by the specialty, the alien must have a United States doctorate or a foreign equivalent degree.” The beneficiary possesses a foreign five-year Bachelor of Medicine & Bachelor of Surgery (MBBS) degree from the University of Poona in India. Upon review of the petition, the director determined that the beneficiary did not satisfy the minimum level of education stated on Form ETA 9089. Subsequently, the employment based visa immigrant petition was denied by the Director of the TSC.

The issue on appeal is whether the petitioner has demonstrated that the beneficiary qualifies for immigrant classification as an advanced degree professional pursuant to the regulations. On appeal, counsel for the employer submitted a cover letter and two new evaluations of the alien beneficiary’s credentials.

Upon review by the AAO, when determining whether a beneficiary is eligible for a preference immigrant visa, USCIS may not ignore a term of the labor certification, nor may it impose additional requirements. Therefore, USCIS’s interpretation of the job’s requirements, as stated on the labor certification must involve reading and applying the plain language of the ETA form 9089. As stated above, two new credential evaluations were submitted for review by the AAO. The first credential evaluation from Megan Mittelstaedt of the Foundation for International Services, Inc. equated the beneficiary’s degrees to that of a U.S. Doctor of Medicine degree. Ms. Mittelstaedt indicated that she relied upon the P.I.E.R. Workshop Report on South Asia, a publication prepared by AACRAO. (To read more about AACRAO, please read the decision located above.) Specifically, the credential evaluation provided that an MBBS from India “represents the attainment of a level of education comparable to a first professional degree in medicine in the United States.” Accordingly, a first professional degree within the United States includes a Doctor of Medicine (M.D.). The second credential evaluation was prepared by Dr. Keith Harrow of Silvergate Evaluations, Inc, and he also found that the beneficiary’s foreign degrees equated to a U.S. Doctor of Medicine degree. The credential evaluations support a conclusion that the alien beneficiary’s foreign education is equivalent to a medical degree from a regionally accredited institution in the United States.

Accordingly, the burden rested with the petitioner, and the petitioner was able to sustain his burden. The petition was thereafter approved.

Posted On: January 15, 2009

February 2009 Visa Bulletin

The Department of State has released its latest Visa Bulletin. The February 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 February 2009 Visa Bulletin.

Posted On: January 14, 2009

ICE raid results in arrests and deportation proceedings

After an investigation conducted by U.S. Immigration and Customs Enforcement (ICE) a Louisville, Kentucky restaurant owner was sentenced to eight months in federal prison for knowingly employing illegal aliens.

As a result of the investigation, the restaurant owner plead guilty to knowingly employing at least 10 illegal aliens at his restaurant for commercial advantage and financial gain. During the ICE raid, agents seized about $59,000 from the restaurant, which will be forfeited to the United States, and detained six illegal aliens found working at the restaurant, who have since been deported. The owner of the restaurant was not a U.S. citizen and will be subjected to deportation proceedings after he completes his prison sentence.

ICE aggressively targets employers who violate immigration laws.

The MVP Law Group encourages all employers to abide by the rules and regulations and keep and maintain accurate and up-to-date I-9 forms for all employees.

If you are interested in conducting an I-9 compliance audit, please contact our office!

Posted On: January 13, 2009

Get Your H-1B Cases Ready Now To File On April 1 for October 1, 2009 Start Date

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for professionals that count against the FY2010 cap on April 1, 2009. These professionals will be eligible to begin H-1B employment on October 1, 2009.

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now. Keep in mind that last year, all 65,000 H-1B numbers were utilized within days of the April 1st filing date. This year we anticipate that the H-1B cap will be met even earlier.

Employers should review their employment needs and determine whether any foreign national employees will be requiring H-1B visas. This is extremely important where employers are planning to hire foreign nationals who will soon graduate from U.S. universities. While many of these individuals may already have an employment authorization card, you may still have to file an H-1B petition for them. For instance, if you plan to hire an individual that will graduate in May 2009, that individual’s employment authorization card will be valid through the end of May 2010. After May 2010, this individual will no longer be able to work for you unless you have already filed an H-1B petition for them on April 1, 2009 asking the USCIS to change their status to H-1B from October 1, 2009. H-1B status grants such an individual up to three years of employment authorization from October 1, 2009.

The H-1B cap does not apply to foreign nationals who already hold H-1B status and are seeking to change their H-1B employer and/or extend their H-1B stay in the United States.

Contact the MVP Law Group to begin the process now!

Posted On: January 12, 2009

BALCA upholds denial of Labor application – Excessive requirement

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 Manager/Video Technician. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a video parlor and equipment retailer filed a LC on behalf of an alien worker in April of 2001. The requirements for the position included the attainment of a high school education and two years of experience in the job offered. In January of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification because the alien did not appear to possess the requisite experience prior to his hire. The NOF gave the employer several options to rebut its findings: (1) show that the Alien had the qualifications now required at the time of hire; (2) submit evidence that the alien obtained the required experience working for the employer in jobs not similar to the position for which labor certification was sought; (3) provide documentation that it was not feasible to hire a worker with less than the qualifications required for the position; or (4) delete the requirement. In its rebuttal, the employer argued that it was not presently feasible to hire an employee with less than the qualifications presently required due to business necessity. The employer further contended that there had been a change in the workforce of the company and it was not possible to provide the same training to a new employee. Thereafter, the CO issued its final determination denying certification because the employer’s infeasibility to train argument was not persuasive. Subsequently, the employer requested BALCA review.

Upon BALCA review, an employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered. Accordingly, one way to avoid a denial is to show that it is not now feasible to hire workers with less training or experience than that required of the position. Where the alien gained the required experience with the employer, infeasibility must be documented – a mere statement is insufficient. In the instant case, the only documentation of infeasibility was the employer’s owner’s rebuttal statement with no collaborating documentation. Thus, the CO properly denied certification.