Posted On: May 27, 2009

UPDATE - FY 2010 H-1B Cap Count

On May 26, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap. As of May 22, 2009, USCIS has received 45,700 H-1B cap subject 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: May 26, 2009

BALCA upholds denial of Labor application – Employer failed to obtain a proper PWD

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 Marketing Consultant.

In August of 2005, the Employer submitted a labor certification application on behalf of an alien worker. The application indicated that the job location was Warren, Rhode Island. Shortly thereafter, the CO issued an audit notification requesting among other documents, the prevailing wage determination (PWD) issued by the State Workforce Agency (SWA). The PWD submitted by the Employer was from California, not Rhode Island. Portions of the California form were crossed out, with Rhode Island being inserted. The portion of the form which provides the job site address and county of job site listed both a Rhode Island address and county and a California address and county. The form was not signed nor dated by the SWA and several important portions were left blank. Specifically, the portions dealing with the Survey Data, Survey Area, Research Analyst were blank. No Rhode Island phone number was provided. The Employer then requested reconsideration arguing that the Rhode Island SWA had informed his office that they could utilize the California prevailing wage request form because they did not have their own form at the time of request. In September of 2008, the CO issued a letter denying certification because the Employer had failed to submit a prevailing wage determination that complied with regulations. The PWD submitted was not effectively endorsed by the Rhode Island SWA, and therefore, it could not be considered valid. The CO then forwarded the case to the Board. Counsel for the Employer argued that it was harmless error, and the CO argued that the Employer failed to provide sufficient documentation to demonstrate that the Rhode Island SWA issued the PWD in question.

Upon BALCA review it was determined that the regulations require that an Employer request a prevailing wage determination from the SWA having jurisdiction over the area of intended employment. Additionally, the SWA must endorse the PWD and return it properly to the Employer. In the case at hand, there was not sufficient information presented that the PWD submitted was actually issued by the Rhode Island SWA.

Accordingly, the CO properly denied certification.

Posted On: May 21, 2009

BALCA upholds denial of Labor application – Employer failed to 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 Stone Carver.

The Employer submitted an application and it was accepted for processing on August 17, 2006. The Employer indicated that the position was for a nonprofessional. On Form ETA 9089, the Employer indicated that the State Workforce Agency (SWA) job order ran from July 5, 2006 until August 5, 2006. In July of 2007, the CO issued a letter denying certification. The main reason for the denial was that the SWA job order was not completed at least 30 days prior to the filing of the application. A request for review was sent to the CO by the Employer’s Attorney. In summary, counsel for the Employer indicated that it had not exceeded the 180 day limit for filing. In September of 2008, the CO issued a letter of reconsideration which established that the application was filed only 11 days after the end date of the SWA job order. The CO reiterated in its letter to the Employer that the denial was valid. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief, whereas the CO did file an appellate brief urging that the denial be affirmed.

Upon BALCA review it was determined that the regulations at 20 C.F.R. § 656.17(e) provide that recruitment must occur prior to the filing of the labor certification application. Specifically, if the application is for a nonprofessional occupation, the Employer must (1) place a job order, and (2) place two advertisements within six months of filing the application. The recruitment steps must be conducted at least 30 days but no more than 180 days before filing the application. Accordingly, entering the start and end date of the SWA job order on Form ETA 9089 establishes proof that these steps were completed properly. In the present case, the Employer failed to wait the proper period of time before filing its application, it only waited 11 days and needed to wait at least 30 days before submitting its application.

Accordingly, the CO properly denied certification.

Posted On: May 19, 2009

BALCA upholds denial of Labor application – Employer failed to comply with Prevailing Wage Determination Instructions

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, Private Household.

The Employer submitted the application by mail. The application was accepted for processing in January of 2006. In the application, the Employer indicated that the prevailing wage determination (PWD) was based on an ‘Employer Conducted Survey.’ The application failed to include the determination and expiration dates for the prevailing wage determination. In April of 2006, the CO denied certification based on the failure to complete the section dealing with the prevailing wage determination. The CO received the Employer’s request for reconsideration in May of 2006. The Employer stated in its request that it did not receive a response from the State Workforce Agency (SWA), and thereafter decided to adopt its own prevailing wage determination based upon speaking with other similarly situated Employers. The Employer submitted along with the request a new version of Form 9089, in which it indicated ‘PW based on Employer Conducted Survey,’ and a copy of the fax to the Maryland, SWA. On reconsideration, the CO denied the application because the Employer failed to indicate the expiration date of the prevailing wage determination. The CO then forwarded the case to the Board. Counsel for the Employer did not file an appellate brief, whereas the CO did file an appellate brief stating that even when an Employer bases its PW determination on a survey, the survey itself must be submitted to the SWA, who then decides whether the survey was acceptable and issues the prevailing wage determination.

Upon BALCA review it was determined that the PERM regulations provide that an Employer must request a prevailing wage determination from the SWA having jurisdiction over the area of intended employment. The regulations provide that the SWA must specify the determination date and expiration date of the PW determination. The regulations at 20 C.F.R. § 656.40(c) state that if an Employer uses a SWA PWD, the Employer must file the petition or begin recruitment within the validity period of the PWD.

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Posted On: May 18, 2009

Updated Service Centers Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on May 15, 2009 with processing dates as of March 31, 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: May 13, 2009

UPDATE – DOL will keep old LCA System operational through June 30, 2009

The Department of Labor (DOL) has informed a liaison of the American Immigration Lawyers Association (AILA) that they will continue to keep the old Labor Condition Application (LCA) system operable for a specified time.

The reasons behind allowing the old LCA system to remain operational through June 30, 2009 are two-fold. First, the DOL wanted time to continue to evaluate issues of concern regarding the LCA system. The DOL has received numerous complaints and issues from users of the system. Secondly, the DOL wanted to give users more time to become familiar with the new LCA system.

If you have any questions about the new LCA system, please feel free to contact our office.

Posted On: May 11, 2009

June 2009 Visa Bulletin

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

Posted On: May 7, 2009

Administrative Appeals Office Processing Times

The Administrative Appeals Office (AAO) released its time report on May 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 outside of the normal range listed and you need assistance, feel free to contact our office.

Posted On: May 6, 2009

UPDATE – FY 2010 H-1B Cap Count

On May 4, 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 45,000 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: May 5, 2009

BALCA affirms denial of Labor application - Employer Failed to Comply with Notice of Filing requirements

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Purchasing Manager.

The Employer filed an ETA Form 9089, Application for Labor Certification on behalf of the beneficiary. The position of Purchasing Manager required two years of experience in the job offered and a Bachelor’s degree in International Business, Marketing. The Employer also listed an alternate education requirement of a Bachelor’s degree in Public Relations, English or any other Business Administration major. Following an audit in December of 2006, the CO denied certification because the Notice of Filing was not posted in accordance with the regulations. The Notice of Filing was originally posted in the President’s handwriting from July 11, 2005 until July 25, 2005. The regulations require that the Notice of Filing be posted between 30 and 180 days before the Employer files ETA Form 9089. In this case, the Employer filed ETA Form 9089 on August 9, 2005. Counsel for the Employer stated that the July 11, 2005 date was an error and that the date should have been listed as May 11, 2005. The CO informed the Employer that documentation fabrication created after the fact to correct a deficiency may be discounted and can continue to be the basis for a denial.

Furthermore, while the beneficiary met the primary experience requirements for the position, he did not meet the primary education requirements for the position. To show that the requirements for the position were not unlawfully tailored to the alien, the Employer must have indicated that U.S. applicants with suitable combinations of education, training, or experience were acceptable. In this case, the Employer failed to do so. The CO then forwarded the case to BALCA for review. Counsel for the Employer contended that there was no document fabrication or motive to deceive when filing the petition. Additionally, Counsel indicated that although the form did not state that qualified U.S. applicants with similar educational experience were acceptable, the criterion was applied in its recruitment efforts. The CO reiterated in its brief that the Employer had not posted the Notice of Filing at least 30 days before the filing of ETA Form 9089. The CO also stated that he did not abuse his discretion in this case.

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Posted On: May 4, 2009

BALCA affirms denial of Labor application – Lack of Employer’s Name on Notice of Filing is not harmless error

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination
of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Stone Inspector.

The Employer filed an ETA Form 9089, Application for Labor Certification on behalf of the beneficiary. In February of 2008, the CO issued an Audit Notification letter requesting among other documents, a copy of the Employer’s Notice of Filing. Thereafter, the Employer supplied a copy of its Notice. In May of 2008, the CO denied the application because the Employer failed to provide its name on the Notice of Filing. Attorney for the Employer filed a motion for reconsideration arguing that since the notice of filing is posted within the job premises, the name of the company does not need to be included, as long as the name of the President and a telephone number are present on the posting. The actual Notice of Filing did not include the Employer’s company name, but did include the President’s name and telephone number. Accordingly, the CO denied reconsideration and thereafter forwarded the case to BALCA for review.

Upon BALCA review, it was determined that the regulations at 20 C.F.R. §§ 656.10(d)(4) and 656.17(f)(1) control the issue before the Board. The regulations require that the Notice of Filing list the hiring company. The CO’s appellate brief indicated that the reasoning behind this regulation is that sometimes more than one employer may reside at a single facility or location. Specifically, the CO stated that when multiple employers share an office and a Notice of Filing is posted in a common area in that office it could potentially apply to either employer. Further, without the name of the Employer, it would not be possible to determine which Employer the Notice of Filing applies. The Board identified the Petitioner’s argument, in that common sense should be used to determine the outcome rather than statutory interpretation. However, the Board found the omission was not harmless error and stated that to make a case out for equitable relief in favor of the Petitioner, the Petitioner needed to do more to show that the company’s name was not needed on the Notice of Filing. They needed to show the size of the company, how well the workforce knew the President of the Company, and whether the place in which it placed its Notices was a place exclusively designated for company bulletins.

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