Posted On: April 30, 2009

BALCA vacates denial of Labor application – Lack of Kellogg Language would offend fundamental fairness and procedural due process

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Computer Systems Analyst. Accordingly, the Board directed the CO to grant certification. This LC was filed prior to the effective date of the “PERM” regulations.

The Employer filed an ETA Form 9089, Application for Permanent Alien Employment on behalf of the beneficiary. The CO denied the application in December of 2006, solely on the basis that Form 9089 lacked the Kellogg language. Specifically, the CO found that the alien currently worked for the Petitioner, and only qualified by virtue of an alternative experience requirement, and the application did not provide the following language: “any suitable combination of education, training, or experience” would be acceptable.

Upon BALCA review, it was determined that the Francis Kellogg decision governs the nature of this case. In Kellogg, the Board reversed the CO’s denial of certification based on the Employer’s failure to write the Kellogg language on the ETA Form 9089 because a denial on that basis would offend fundamental fairness and procedural due process. It would offend fundamental fairness and procedural due process because the instructions for ETA Form 9089 failed to provide a place to write the language, and the Employment Training Administration (ETA) had not provided instructions to the public to handle the issue in a timely manner.

Accordingly, the CO properly vacated the CO’s final determination and granted certification.

Posted On: April 29, 2009

USCIS revises filing requirements and mailing address for Form I-90, Application to Replace Permanent Resident Card

The United States Citizenship and Immigration Service (USCIS) announced on April 27, 2009 that they have made minor changes to the process of applying for a replacement Permanent Resident card. These changes apply to all applicants applying via paper form, including those applying because their previously issued card was never received and those who have cards with incorrect data due to a USCIS error. These changes do not apply to those applicants filing Form I-90 electronically, or those whose residence is located outside the United States.

One of the changes involves the submission of all supporting documentation at the time of applying (mailed along with a completed Form I-90). Prior to this change, applicants were asked to bring supporting documentation with them to their biometrics appointment.

Additionally, the Direct Mail address has been changed. The USCIS mailing address for completed Form I-90 was originally a Lockbox facility in Los Angeles, CA. Due to the closing of this facility the new USCIS Lockbox facility address for Form I-90 is in Phoenix, AZ. Applicants have been instructed to mail their applications to the addresses provided below:

USCIS
P.O. Box 21262
Phoenix, AZ 85036

If utilizing a courier service (FedEx, UPS, etc):

USCIS
ATTN: I-90
1820 Skyharbor Circle S Floor 1
Phoenix, AZ 85034

The USCIS released Questions & Answers relating to these new minor changes. The questions deal with what to do if you have already submitted Form I-90 to the Los Angeles Lockbox facility, and what would occur if an application was mailed to the wrong address.

Posted On: April 29, 2009

Not finding your case available Online?

The United States Citizenship and Immigration Service (USCIS) National Benefits Center (NBC) Liaison Committee has identified that there is a problem with the interface tool for the “Case Status Online.” Not only has this problem caused much delay in the recording of new receipt numbers in the system, it has hampered the updating of status information for those cases already in the online system. The Liaison Committee stated that the issue was not limited to NBC filings, and that the problem has been recurring. The NBC Liaison Committee did not provide a time estimate of when they expected the interface to be fixed.

Posted On: April 28, 2009

Legislation to Reform the H-1B Visa Program Introduced by Senators Durbin (D-IL) and Grassley (R-IA)

On Thursday, April 23, 2009, Assistant Senate Majority Leader Dick Durbin and Senator Chuck Grassley introduced the H-1B and L-1 Visa Reform Act. This bipartisan legislation would reform the current H-1B and L-1 guest worker programs to prevent abuse and fraud, and to protect American workers.

This legislation calls for a “good faith attempt” to solicit qualified American workers before hiring an H-1B guest worker. Accordingly, Employers would be prohibited from using H-1B visa holders to displace qualified American workers. Additionally, the bill calls for a prohibition against the blatantly discriminatory practice of “H-1B only” ads and would prohibit Employers from hiring additional guest workers if more than 50% of their workforce consisted of H-1B and L-1 visa holders.

To address the issues of fraud and abuse, the bill would allow the Department of Labor (DOL) to initiate investigations without a complaint and without the personal authorization of the DOL Secretary. In addition, the bill would allow the DOL to conduct random audits of companies that utilize the H-1B nonimmigrant visa program. Specifically, the bill calls for annual audits by the DOL for employers who employ a large number of guest-workers.

Senators Durbin and Grassley introduced similar legislation last Congress.

Posted On: April 27, 2009

UPDATE – FY 2010 H-1B Cap Count

On April 20, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap. USCIS has received 44,000 H-1B nonimmigrant visa petitions. USCIS has advised that they will continue to accept petitions until the cap is reached. Additionally, USCIS reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable. Accordingly, qualifying applicants are still able to petition for an H-1B nonimmigrant visa either under the general cap, or as an applicant with an advanced degree. (i.e., U.S. Master’s degree)

If you have any questions surrounding the H-1B nonimmigrant visa program, please contact our office.

Posted On: April 24, 2009

In Lieu of Recent BALCA Decisions, a Message from the MVP Law Group, P.A.

It has come to our attention that many Permanent Labor Certification Applications are being denied by the Department of Labor (DOL) for several reasons, some of which could be avoided by having competent counsel.

It is important to have an Experienced Attorney who is familiar and thorough when completing and filing Permanent Labor Certification Applications. Many of the reasons for denial of labor certification are because of the failure to comply with Federal Regulations, failure to provide specific dates, misinterpreting statutory language, and the failure to comply with time period requirements.

When dealing with the complexity of Business Immigration Law it is recommended that you obtain the expertise of a skilled and knowledgeable Business Immigration Attorney, especially when dealing with the specificity of the PERM process.

Please contact the MVP Law Group today to discuss your Business Immigration needs.

Posted On: April 24, 2009

BALCA upholds denial of Labor application – Did Not Comply with “Notice of Filing” 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 Chef.

In May of 2006, the CO issued an Audit Notification letter. The CO requested that the Employer submit its Notice of Filing, among other documents requested. The Employer responded by submitting two Job Postings. Subsequently, the CO denied the application in December of 2006 on several grounds. The majority of the deficiencies focused on the Notice of Filing. The CO provided that the Notice of Filing failed to (1) state that the Notice was being provided as a result of the filing of an application for permanent alien labor certification, (2) state that any person may provide documentary evidence bearing on the application to the CO, (3) provide the CO’s address, and (4) list the wage offered for the position. In January of 2007, the Employer requested reconsideration and review of the denial. The Employer put forth the argument that the requested documentation was submitted to the CO in the context of the audit, and therefore, only a substantial failure to provide documentation may justify a denial of the application. Subsequently, the CO issued a letter of reconsideration providing that the denial was proper under 20 C.F.R. 656.10(d). The CO then forwarded the case to BALCA. The Employer did submit an appellate brief in support of its position, stating that the standard of consideration of whether to deny an application is whether the Employer’s filings constituted substantial compliance with the requirements of the Code of Federal Regulations. The CO also filed a brief urging denial based on the importance of the Notice of Filing requirement and its contents.

Upon BALCA review, the language of the applicable Federal Regulation was analyzed. The regulation at 20 C.F.R. 656.10(d) provides that the Notice of Filing must (i) state the notice is being provide as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) state any person may provide documentary evidence bearing on the application to the CO of the Department of Labor (DOL); (iii) provide the address of the appropriate CO; and (iv) be provided between 30 and 180 days before filing the application. Additionally, if any application is filed under Sec. 656.17, the notice must contain the information required for advertisements by Sec. 656.17(f), must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form), and must contain the information required by paragraph (d)(3) of this section.

Continue reading " BALCA upholds denial of Labor application – Did Not Comply with “Notice of Filing” Requirements " »

Posted On: April 23, 2009

BALCA upholds denial of Labor application – Incomplete, Missing Required Information

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 Specialty Chef.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in September of 2005. In March of 2006, the CO denied the application because of numerous deficiencies. The appeal before the Board only addressed one of the deficiencies, the failure of the Employer to specify the expiration date of the State Workforce Agency (SWA) prevailing wage determination. The Employer’s original petition provided November 2003, as the determination date and stated “N/A” for the expiration date of the SWA prevailing wage determination. The CO’s denial letter addressed the issue concerning the absence of the expiration date. Thereafter, the Employer’s attorney filed a request for review. The Employer’s attorney provided answers for a number of the omissions and submitted additional documentation. In regards to the expiration date of the SWA prevailing wage determination, the Employer’s attorney stated 2004. Subsequently, the CO issued a letter of reconsideration in August of 2008. The CO found that the Employer’s attorney had successfully rebutted several of the deficiencies, but still affirmed the denial of certification based upon a number of reasons. The CO provided that the expiration date of the prevailing wage determination was an important piece of information that needed to be provided in a month, day and year format, consistent with the regulations. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but the CO did file a brief urging denial based on the fact that the application was incomplete.

Continue reading " BALCA upholds denial of Labor application – Incomplete, Missing Required Information " »

Posted On: April 22, 2009

BALCA upholds denial of Labor application – Employer Did Not Comply with PERM Regulations

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 Baker.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in February of 2006. The CO issued an Audit Notification letter in May of 2006. The CO requested that the Employer submit its Notice of Filing, and its recruitment documentation, among other documentation. In response, the Employer submitted a copy of an “Employment Notice” and copies of its newspaper advertisements for the job opportunity. In October of 2006, the CO then issued a denial letter. The CO stated that the newspaper advertisements were deficient because they did not include the Employer’s name, and the Notice of Filing did not include the appropriate address of the CO, or provide the wage offered for the position. Thereafter, the Employer filed a motion for review arguing that he complied with the regulations because the advertisements included the Employer’s personal office fax number. The Employer also argued that the case number and jurisdiction of the CO was included in the Notice of Filing. However, the Employer did not address the absence of the wage information, but attached a copy of the State Workforce Agency (SWA) wage determination. Subsequently, the CO issued a letter of reconsideration withdrawing the citation concerning the appropriate CO’s address, but found that the absence of the Employer’s name from the advertisements and the absence of the wage offer from the Notice of Filing remained valid grounds for denial of certification. The CO then forwarded the case to BALCA. The Employer did submit an appellate brief in support of its position and provided that the fax number included in the advertisements satisfied the regulatory requirements. The Employer also indicated that the wage offer was clearly provided in ETA Form 9089. Thereafter, the CO did filed a brief urging affirmation of the denial.

Upon BALCA review, it was determined that the regulation at 20 C.F.R. 656.17(f)(1) requires that the newspaper advertisement identify the Employer. The main reason behind the use of the Employer’s name in newspaper advertisements is to let applicants know what company is offering the job. The Board upheld the CO’s denial on this ground. Additionally, the regulation at 20 C.F.R. 656.10(d) requires an Employer to post a Notice of Filing of the permanent labor certification application. The Notice of Filing must state the rate of pay (which must equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form.) The inclusion of the rate of pay in ETA Form 9089 did not cure the failure to include the rate of pay on the Notice of Filing. Accordingly, the Board affirmed the CO’s denial of certification on this ground.

Posted On: April 21, 2009

BALCA upholds denial of Labor application – No On-Site Hire Exception to Advertising 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 Framer.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in April of 2007. The Employer specified in the application that the position was not a professional occupation. The CO then denied the application on two grounds: the Employer failed to complete ETA Form 9089 by leaving multiple sections incomplete; the Employer used an Occupational Employment Statistics (OES) prevailing wage issued prior to March 8, 2005. Thereafter, the Employer’s owner sought a request for review. The Employer submitted information regarding the omitted sections, and attached a copy of a January 23, 2007 OES prevailing wage. Subsequently, the CO issued a letter of reconsideration accepting the Employer’s reasoning on three of the omissions, but found that the other five deficiencies were not cured by the information provided by the Employer. Specifically, the CO was requesting information concerning the State Workforce Agency (SWA) job order and the Sunday edition newspaper advertisements. For several of the selections, the Employer indicated NONE rather than filing in the specific dates required because the Alien was an “on-the-job-site hire.” The CO informed the Employer in the letter that under the regulations, a 30-day SWA job order is a mandatory recruitment step and the Employer is required to place two print advertisements in a Sunday edition newspaper. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but stated that the alien was a very good employee and that he would like to keep him. The CO did file a brief urging affirmation of the denial.

Upon BALCA review, it was determined that the PERM regulations for a nonprofessional occupation require that the employer must at a minimum place a job order and two newspaper advertisements within six months of filing the application. The job order must be placed with the SWA serving the area of intended employment for a period of 30 days. Nothing in the regulations indicates that there is an “on-the-job-hire” exception to the mandatory recruitment steps. Accordingly, the CO correctly denied certification.

Posted On: April 20, 2009

Updated Service Centers Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on April 16, 2009 with processing dates as of February 28, 2009.
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
National Benefits Center
Nebraska Service Center
Texas Service Center

Vermont Service Center

If your petition is out-side of the normal range listed, contact USCIS. (1-800-375-5283)
If you would like our assistance, feel free to contact our office.

Posted On: April 17, 2009

REMINDER to all U.S. Employers – Use Updated Form I-9

As of April 3, 2009, the United States Citizenship and Immigration Services (USCIS) indicated that U.S. employers should no longer be using outdated versions of Form I-9. The updated Form I-9 has been available in English and Spanish via the USCIS website since it was revised in February.

Instructions for completing Form I-9 have also been made available by the USCIS. Additionally, the USCIS has provided a 1-800 number that employers may use to order updated Form I-9 if they do not have online access.

If you need assistance in completing Form I-9, or are interested in conducting an in-house Form I-9 Audit, please contact our office for assistance.

Posted On: April 16, 2009

H-1B Visa Program and TARP recipients – Ongoing Issues

According to the American Immigration Lawyers Association (AILA), several United States Citizenship and Immigration Service (USCIS) service centers have begun to issue Requests for Additional Evidence (RFEs) for all H-1B petitioning employers who did not include the TARP recipient funding page of Form I-129, Data Collection with their H-1B FY 2010 petitions.

Due to the passage of the Employ American Worker Act (EAWA), the USCIS is required to collect Troubled Assets Relief Program (TARP) information on each H-1B petitioning employer. Due to the fact that Form I-129 was not re-designed and accessible to reflect this change in the visa program until a few days before the H-1B FY 2010 cap opened, submission of the newly designed Form I-129, Data Collection was not mandatory. The USCIS has indicated that if H-1B petitions were submitted without the TARP information, they would not be rejected. In conclusion, the USCIS has determined that in order to collect the required TARP information, they will need to issue RFEs. So far, practitioners who have received RFE’s requesting TARP information have reported that the USCIS has only requested the single page of Form I-129, Data Collection (page 13) which indicates whether the petitioner has received TARP funding or not.

As immigration law is already complex is nature, it is important to have an attorney experienced in the field, who is ready and willing to advise when changes occur. Contact the MVP Law Group if you have any further questions regarding EAWA and its effect on your company.

Posted On: April 15, 2009

NEW iCert System – Update

On April 10, 2009, the Department of Labor (DOL) released new information and materials on the New iCert System which covers the H-1B, H-1B1, and E-3 visa programs. The New iCert system will be implemented beginning April 15, 2009. According to the American Immigration Lawyers Association (AILA) the New iCert system is a one stop visa shop for employers and their representatives. The new system allows for employers and/or their representatives’ to easily access online employment based visa application services as well as other pertinent information.

The DOL has created a factsheet on the new system which provides a detailed implementation schedule and helpful contact information for employers and/or their representatives.

The DOL also released its user manual which provides detailed steps for easy employer and/or representative registration.

Additionally, the DOL has released its user guide for preparing, saving and submitting new ETA Form 9035E, Labor Condition Applications.

If you have any questions relating to the New iCert system, please contact our office.

Posted On: April 14, 2009

H-1B Demand for FY 2010 - Updates

Regular Petitions Subject to Cap
As of April 9, 2009, the United States Citizenship and Immigration Services (USCIS) have received approximately 42, 000 H-1B nonimmigrant petitions counting toward the congressionally mandated 65,000 cap. The USCIS has indicated that they will continue to accept H-1B petitions subject to the cap.

Advanced Degree Petitions
In regards to foreign applicants with U.S. Advanced degrees, the USCIS has indicated that they have received 20,000 petitions; however, they will continue to accept petitions. The reason for accepting more U.S. Advanced degree petitions is because experience has shown that not all petitions initially accepted are approvable. The USCIS also indicated that they will provide updates.

Premium Processing
For those who have selected to utilize the Premium Processing option, the USCIS has advised that the 15 calendar day started on April 7, 2009. Utilizing the Premium Processing option allows an H-1B recipient to obtain an approval within 15 days of submitting the petition for an additional cost of $1,000. In other words, for those applicants who have submitted their H-1B petitions under Premium Processing, they should have an approval or denial within 15 days of April 7, 2009.

Receipt Issuance
The USCIS has also indicated that H-1B receipts are being issued as of April 8, 2009. If you have filed an H-1B petition, please be patient to receive your receipt before inquiring whether or not your case has been received and/or accepted by the USCIS.

H-1B Lottery
Once the USCIS determines that sufficient petitions have been received to meet the H-1B congressionally mandated cap, the USCIS will then conduct a random selection lottery from the petitions received on that day.

If you have any questions about the H-1B nonimmigrant visa program, the regulations surrounding the program or the H-1B visa in general, please contact our office to schedule a consultation.

Posted On: April 13, 2009

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) released its time report on April 1, 2009 with updated processing times for all types of cases accepted by its Office.
If you filed an appeal, please review the link below to determine the applicable processing time associated with your case.

Administrative Appeals Office

If your case is out-side of the normal range listed and you need assistance, feel free to contact our office.

Posted On: April 13, 2009

May 2009 Visa Bulletin

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

Posted On: April 10, 2009

BALCA upholds denial of Labor application – Employer Placed Job Order after receiving denial

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 Restaurant Manager.

The Employer filed a LC on behalf of an alien worker and it was accepted for processing in July of 2006. The Employer specified in the application that the position was not a professional occupation. The CO then denied the application because the application did not include any evidence that a job order was placed with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. Thereafter, the Employer sought reconsideration on the ground that it placed a new advertisement with the SWA from November 7, 2006 to December 8, 2006. Subsequently, the CO denied reconsideration explaining that a new job order placed after the application had been filed could only be used to support subsequent filings, not the application at issue. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief in support of its position, but the CO did file a brief urging affirmation of the denial.

Upon BALCA review, it was determined that the PERM regulations for a nonprofessional occupation require that the employer must at a minimum place a job order and two newspaper advertisements within six months of filing the application. The job order must be placed with the SWA serving the area of intended employment for a period of 30 days. In the present case, the Employer’s job order was placed from February 9, 2006 to March 9, 2006, a period less than 30 days. Accordingly, the Employer’s job order was not long enough in duration to satisfy the requirements.

In summary, the Employer filed another job order after receiving the denial determination which did not cure the defect. As explained by the CO and reiterated by the Board, the new job order could be used to support subsequent filings, but did not help to correct the defect in the present petition. Thus, the CO properly denied certification.

Posted On: April 9, 2009

BALCA upholds denial of Labor application – Employer failed to comply with PERM process

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 Cook.

The CO denied the application in March of 2008 on one ground; the Employer had not filed its application or begun recruitment within the validity period of the State Workforce Agency (SWA) prevailing wage determination. Thereafter, the Employer filed a motion for reconsideration stating that the failure to place advertisements was an unintentional oversight, and that its overall efforts at recruitment were sufficient. The Employer attached an affidavit from the Employer’s owner reciting the difficulty in recruiting cooks for the restaurant. Subsequently, the CO denied reconsideration. The CO forwarded the case to BALCA. The Employer did not file an appellate brief, but the CO filed an appellate brief urging that its denial be affirmed by the Board. In the CO’s brief, it noted case law where a claim of clerical error as grounds of reversal was rejected because the employer had committed a substantive violation of the regulations.

Upon BALCA review, it was determined that the PERM regulations at 20 C.F.R. § 656.40(a) require that a petitioning employer obtain a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employed. The SWA specifies the validity date of the prevailing wage. When a SWA prevailing wage is used in support of an application, the petitioning employer MUST file their application(s) or begin the recruitment specified by the regulations within the validity period given by the SWA.

Continue reading " BALCA upholds denial of Labor application – Employer failed to comply with PERM process " »

Posted On: April 9, 2009

BALCA dismisses Appeal based upon PERM audit regulation 20 C.F.R. § 656.20(a)(3)

The Board of Alien Labor Certification Appeals (BALCA) recently dismissed an appeal based upon the PERM audit regulations. A labor certification application was filed on behalf of an alien worker for the position of Domestic Servant. The CO issued a letter denying certification of the labor certification (LC) because the Employer failed to provide all evidence requested in the Audit Notification letter.

The employer, a private household filed a labor certification application on behalf of the alien worker in April of 2006. In December of 2006, the CO sent the Employer’s attorney an Audit Notification letter. The application was selected for audit to determine why the Alien resided with the Employer. The letter specifically requested documentation relating to the issue, and also requested the Recruitment Report and other documentation. In response, the Employer submitted an explanation as to why the alien lives with the household, and a copy of a tax return. Thereafter, the CO issued a letter denying certification. The CO attached a handwritten note to the letter stating that the recruitment report and advertisements were missing. A motion for reconsideration was filed by the Employer’s attorney in April of 2007. Support for the motion consisted of an explanation about miscommunication between the attorney and the employer, another copy of the tax return, newspaper advertisements, the CALJobs job order, and a prevailing wage determination. Subsequently, the CO issued a letter denying reconsideration because the Recruitment Report had not been provided. The CO forwarded the case to BALCA. The Employer did not file an appellate brief in support of his position on the issue, whereas the CO filed a letter brief arguing that the Recruitment Report is an essential requirement of the labor certification program.

Upon BALCA review, it was determined that PERM audit regulation at 20 C.F.R. § 656.20(a)(3) controls the issue on appeal. It provides that if the employer fails to provide documentation required to be submitted by the date specified in the audit letter, the application is automatically denied, the employer is considered to have refused to exhaust available administrative remedies, and administrative-judicial review before BALCA is not available. Thereafter, the Board determined that the Employer failed to timely submit the recruitment report as directed in the Audit Notification letter, and subsequently, according to regulations, the Board had no authority to further review the denial. Accordingly, the appeal was dismissed.

Posted On: April 8, 2009

BALCA upholds denial of Labor Certification, No valid FEIN

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 Restaurant Cook.

The employer filed a LC on behalf of an alien worker in August of 2005. In November of 2005, the CO issued an Audit Notification because he was unable to verify the Employer as a bona fide business entity. The CO requested proof of the employer’s Federal Employer Identification Number (FEIN), among other documents. In response, counsel for the Employer submitted the FEIN of a different entity. Counsel stated that the reason the number has changed is because a new owner has taken over and is willing to continue sponsoring the Alien. Thereafter, the CO issued a letter denying certification on one ground, the FEIN supplied was not valid. The CO determined that the Employer did not have a valid FEIN at the time of filing, and that a new owner must file its own application. Subsequently, counsel for the Employer requested reconsideration addressing the same argument as he did previously. In May of 2008, the CO denied reconsideration by stating that the original sponsoring Employer no longer existed based on the Employer’s own statement, and on information the CO received from the California Secretary of State. The CO then forwarded the case to BALCA. The Employer did not submit an appellate brief, but the CO did file a letter brief arguing its reasons behind the denial for reconsideration.

Upon BALCA review, it was determined that the requirement in ETA Form 9089 requiring submission of a FEIN was fully supported by the regulations and by policy of using the FEIN as a means of verifying whether an employer is a bona fide business entity. BALCA reviewed case law surrounding the FEIN issue and found the following: (1) substitution of a Social Security Number (SSN) was not a substitute for a FEIN for a private household; and (2) obtaining a valid FEIN after being notified of the deficiency is not harmless error, it is failure to comply with the substantive requirement of possessing a valid FEIN prior to filing, hence a violation of the regulations. BALCA determined that where an application is deficient when filed because the sponsoring employer does not have a valid FEIN, the CO is not required to permit the application to be perfected based on a change in ownership. Accordingly, the CO properly denied certification.

Posted On: April 7, 2009

BALCA affirms priority date for PERM application

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determinationof a Certifying Officer (CO) affirming the filing date for the approved PERM labor certification (LC). The application was filed on behalf of an alien worker for the position of Auto Mechanic.

The employer, an auto repair shop filed a pre-PERM application on behalf of the alien worker on April 25, 2001. The education requirement is what is at issue on appeal. The pre-PERM application stated a requirement of an eighth grade education. On November 4, 2005, the employer’s filed PERM application for the alien worker was accepted for processing. The PERM stated a requirement of a high school education. The CO thereafter granted certification and set the alien worker’s priority date, November 4, 2005. The letter did not include an explanation as to why the priority date was not that of the pre-PERM date accepted for processing, April 25, 2001. Former counsel for the employer wrote to the CO arguing that the priority date was in error and attached evidence of the pre-PERM acceptance date. A few months later, new counsel for the employer mailed a letter to the CO reiterating the same point addressed in former counsel’s letter. The CO denied reconsideration on the priority date issue in July of 2008. The CO explained that the earlier date was not assigned as the priority date for the application because the applications were not identical on the education requirement. The CO then addressed the argument the employer made in its letter. The employer argued that ETA Form 9089 does not provide an option for grade school, and the closest option was high school. The CO rebutted this argument by noting that there is an option on Form 9089 for other, which allows the employer to specify what is required in regards to education. The CO forwarded an Appeal File to BALCA. The employer did not submit an appellate brief addressing the issue; however, the CO did file a letter brief which supported the reasons behind its denial of the motion for reconsideration.

Continue reading " BALCA affirms priority date for PERM application " »

Posted On: April 7, 2009

BALCA upholds denial of Labor application – Misinterpretation of Statutory Regulations

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 Auto Mechanic.

The Employer filed a LC on behalf of the alien worker and it was accepted for processing in January of 2007. The Employer stated in the application that the job was a nonprofessional position. The Employer indicated that it had run the State Workforce Agency (SWA) job order from December 15, 2006 until January 17, 2007, and submitted the application by mail on January 22, 2007. Thereafter, the CO issued a denial letter. The CO based the denial in part on the SWA job order not being in compliance with the statutory regulations. In March of 2007, the Employer’s owner requested review arguing that the SWA job order was completed at least 30 days prior to submission of the application. Subsequently, the CO issued a letter of reconsideration. The CO stated that the Employer had misunderstood the regulatory requirement which requires that the job order end at least 30 days prior to the ETA Form 9089 filing date. The CO said the application must be denied because the end date of the job order, (January 17, 2007) was less than 30 days prior to the filing date (January 22, 2007). The CO then forwarded the case to the Board. The Employer did not submit an appellate brief in support of its position, whereas the CO did file an appellate brief urging affirmation of the denial.

Upon BALCA review, it was determined in accordance with 20 C.F.R. § 656.17(e) that the job order must have been completed at least 30 days, but no more than 180 days before filing of the application, and it must have been at least 30 days in duration. The Board agreed with the CO about the Employer’s misinterpretation of the statutory regulation, and held that it was clearly a violation of the regulations by filing the application less than 30 days after the SWA job order ended. The Board explained that the regulatory time requirement was designed to ensure that the Employer had sufficient time to receive resumes, make contact with any applicants, conduct interviews, and make decisions regarding any U.S. applicants who may have applied for the job opportunity in response to the recruitment effort. Accordingly, the CO properly denied certification.

Posted On: April 6, 2009

BALCA upholds denial of Labor application – Employer failed to comply with advertisement regulations

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 Horse Trainer.

The Employer submitted the application by mail. In the application, the Employer indicated that the job was first advertised in the New York Post on November 11, 2005 (three days, Friday, Saturday, Sunday) and the second advertisement was run on December 17, 2005 (three days, Saturday, Sunday, Monday). The CO had the mailed in application re-keyboarded, and the new version only stated 11/11/2005 and 12/17/2005 as the first and second dates that the advertisements were run. Subsequently, in November of 2006, the CO issued a denial letter on two grounds. The first reason related to the dates of the placement of a State Workforce Agency (SWA) job order, and the other reason related to whether the position was advertised in a Sunday edition of a newspaper of general circulation. Thereafter, the Employer filed a motion for reconsideration. The Employer submitted tear sheets establishing that a Sunday advertisement was run in the New York Post on November 13, 2005 and on December 18, 2005. In June of 2008, the CO denied reconsideration providing that the tear sheets revealed that the advertisements did not name the Employer, did not indicate the geographic area of employment, and did not contain a wage rate at least equal to the prevailing wage. Thus, the CO declared that the denial was valid because the employer had not provided evidence that it placed a qualifying advertisement meeting all regulatory requirements. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief to address the problems the CO identified in regards to the advertisements, whereas the CO did file an appellate brief detailing the applicable statutory regulation and the Employer’s alleged violation.

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Posted On: April 3, 2009

CGFNS Guidance on Educational Requirements for PT applicants

The Commission on Graduates of Foreign Nursing Schools (CGFNS) International is an internationally recognized authority on credentials evaluations and verification pertaining to the education, registration, and licensure of nurses and health care professionals worldwide. CGFNS International is a leader in the industry with extensive knowledge of the profession and over 30 years experience reviewing foreign education credentials. CGFNS was asked to provide guidance on its view of the educational requirements for applicants intending to fulfill the position of Physical Therapist (PT). However, the Department of Homeland Security (DHS) has stated that this guidance given by CGFNS International is not binding.

As a credentialing organization, CGFNS must first make an assessment of whether an alien’s education, training, licenses and experience are comparable with that required for an American health care worker of the same type. Secondly, the organization must determine whether a particular alien’s education, training, license and experience meet all applicable statutory and regulatory requirements for admission into the United States.

Analysis of Degree Requirements
Applicants for Permanent Residence
Foreign PTs seeking permanent resident alien status must satisfy the applicable Department of Labor (DOL) regulatory requirements. These regulations include the definition of “physical therapist,” which states in part that these individuals are “persons who will be employed as physical therapists, and who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice physical therapy. According to these regulations, it is the education requirement of the state of intended employment that controls whether the degree requirement is a master’s degree or bachelor’s degree. The applicable regulations do not provide further guidance on the issue.

Applicants for H-1B status
Foreign PTs seeking H-1B visa status must satisfy the USCIS regulations at 8 C.F.R. 214.2 (h). Among these requirements is the requirement that PT beneficiaries of H-1B petitions “hold a U.S. baccalaureate or higher degree required by the specialty occupation…” or a foreign degree equivalent, and hold an unrestricted State license to fully practice the specialty occupation or have progressive work experience comparable to a U.S. baccalaureate or higher degree. The regulations do not define the professional degree required as long as it is at least a bachelor’s degree or higher. Due to the state licensing requirement, the education standards for the state of intended employment continue to control if the PT indeed already has such a license. No further guidance was provided on the issue.

Applicants for TN status
Foreign applicants seeking TN status must satisfy the standards at 8 C.F.R. 214.6. For the position of “Physiotherapist/Physical Therapist,” the United States Citizenship and Immigration Service (USCIS) regulations provide that a baccalaureate or licenciatura degree, or a state/provincial license is required.

The comparable U.S. entity is the Commission on Accreditation in Physical Therapy Education, (CAPTE) and they describe the educational requirement for this position as simply “post baccaulureate.” Accordingly, there is no requirement that a foreign beneficiary must possess a Master’s degree to seek admission into the United States as a Physical Therapist. Accordingly, the DOL Occupational Outlook Handbook (OOH) is incorrect on the issue.

Posted On: April 2, 2009

BALCA upholds denial of Labor application – Employer failed to rebut NOF

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 Domestic Tutor. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a private household filed a LC on behalf of an alien worker in June of 2004. The requirements for the position were a high school education, four years of training as a domestic, and four years of experience in the job offered. In May of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification due to numerous defects in the application. First, the Director found that the job requirements were unduly restrictive in violation of the regulations, and as such were in excess of the requirements listed in the Dictionary of Occupational Titles (DOT). The DOT lists a specific vocational preparation (SVP) for this job as “over one month and up to three months” of combined education, training and experience. The CO instructed that this issue could be rebutted by one of two ways: (1) establish a business necessity for the job requirement, or (2) reduce the requirements to the DOT standard. Additionally, the CO determined that the documentation provided did not establish that the alien worker had the four years of training and four years of experience in the job prior to being hired. The CO provided that the employer could rebut this finding by: (1) documenting that the alien worker had the required training and experience at the time of hire; (2) submitting evidence that it is not presently feasible due to business necessity to hire a worker with less than the qualifications presently required for the job opportunity and demonstrate that the job as currently described existed before the alien was hired, or (3) amending or deleting the requirement. Another defect noted in the NOF was that the Employer had not documented that the alien worker had one year of full time experience performing the duties of the job offered in a domestic household as required by the regulations. The CO provided that this defect too could be rebutted by submitting specific information. Lastly, the CO identified that the wage offered in the application was $9.00 per hour, which was below the prevailing wage of $13.34 per hour. The CO informed the employer this defect could also be rebutted by: (1) amending the application and increasing the salary offer to at least 100% of the prevailing wage, or (2) submit alternative wage data. In its rebuttal, the employer stated that there was business necessity, that overwhelming evidence had been submitted to establish that the alien had the requisite experience at the time of hire, and amended the application to increase the salary to $14.00 per hour.

The CO stated that the Employer’s rebuttal evidence corrected the prevailing wage defect, but the Employer’s rebuttal was not sufficient to correct the other three deficiencies in the application. Thereafter, the CO issued its final determination denying certification because the Employer did not correct all deficiencies in its labor application. Subsequently, the employer requested BALCA review.

The regulations require that an employer must document that its requirements for the job opportunity are those normally required for the successful performance of the job in the United States. 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 Employer indicated that the job requirements arose from a business necessity, however; the employer failed to submit any documentation to verify its statements. Upon BALCA review, it was determined that the Employer did not establish business necessity for the training and experience requirements in excess of those set forth in the DOT. The Employer stated that they would amend the application to rebut the findings of the Director, however; only the wage section of the application had been amended. In summary, the Employer did not submit any documentation on rebuttal to cure the defects noted by the CO. Thus, the CO properly denied certification.

Posted On: April 1, 2009

Illinois Act deemed invalid by U.S. District Court

E-Verify is a federal program in which employers may voluntarily sign up electronically to be able to identify the employment eligibility of new hires against federal databases in a matter of minutes. How it works: An employer requests that a new hire complete Form I-9, and with the information provided on the form, and the documentation needed to prove eligibility, the employer manually enters the information into the E-Verify database. Two things may occur once this takes place: (1) the employer receives confirmation that the new hire is authorized to work in the United States; or (2) a tentative non-confirmation (TNC) is issued, indicating that the federal program cannot identify that the new hire is authorized to work in the United States. If a TNC is issued, the employer must provide the applicant with information and guidance on how to resolve the issue, and a secondary verification process must occur within ten days before a final determination is made on the applicant’s employment eligibility.

The State of Illinois created legislation in regards to the passage of the Employment Eligibility Verification Program, otherwise known as “E-Verify.” In summary, the Illinois Act provides that employers are prohibited from enrolling in any Employment Eligibility Verification System, including the Basic Pilot program, until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employes within three days, unless otherwise required by federal law.

At issue is whether the Illinois Act is invalid under the Supremacy Clause of the United States.

State laws are invalid under the Supremacy Clause if the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Congress put the federal program in place as a means to verify the employment eligibility of new hires. The federal statute states that any employer may participate. The problem lies with the fact that Illinois has enacted legislation to prohibit employers from utilizing the program. As such, the District Court provided that the Illinois Act frustrates Congress’ purpose by prohibiting Illinois employers from participating in the Federal program unless the Federal program meets Illinois’ standards for accuracy and speed. Illinois cannot dictate to Congress the standards that federal programs must meet. This clearly frustrates the Congressional purpose of making the Federal program available to all employers. Accordingly, the Illinois Act is invalid under the Supremacy Clause, and the State of Illinois is permanently enjoined from enforcing the invalid act.