Posted On: June 29, 2011

LATEST UPDATE: H-1B FY2012 CAP COUNTS

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of June 24th, 2011, 17,400 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 24th, 2011, 11,300 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept H-1B petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2012 H-1B CAP updates!

Posted On: June 29, 2011

BALCA Finds No Business Necessity for 2-Year Experience Requirement for Cook

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

On ETA Form 9089 the Employer listed 2 years as the minimum amount of experience required for the position. Certification was denied by the CO on the grounds that the Employer did not select the name of the newspaper for the second advertisement in Section I-11. In a request for review, the Employer argued the omission was inadvertent and the “New York Daily News” should be inserted and included copies of the advertisement. An Audit Notification was then issued by the CO who stated that the minimum requirements set by the Employer exceed the SVP level assigned by O*NET. In order for the Employer to list requirements higher than those set by SVP, he must demonstrate that the additional requirements are essential for the position. The Employer submitted its response to the Audit and explained the business necessity for the additional requirements. The Employer stated that in the past when he had hired individuals with less than two years experience their skills were unsatisfactory and “they lacked knowledge to put together the necessary menus.” However, the CO denied certification due the fact that the Employer did not respond to the Audit before the specified date of 3/31/2008. The Employer wrote back arguing that a response was sent on March 12 and that a Federal Express Receipt show the audit team received it on March 14. Again the CO denied certification going back to the original reason for denial that the Employer exceeded the requirements set by the SVP level and did not adequately prove a business necessity for the additional requirements. In request for review the Employer submitted letters from other restaurant owners who require a minimum of two years experience, pages from the O*NET website and Dictionary of Occupational Titles showing a SVP of 6 for a cook position. The CO found the Employer’s response did not overcome the deficiencies and the documentation the Employer submitted was new evidence. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.17(h)(1) controls and it provides that unless adequately established for business necessity, the job requirements must not exceed those set by the SVP level assigned by O*NET.

In the instant case, the Employer’s requirements for the position exceed those set by the SVP assigned by O*NET for the position of “Cook.” The letter from the Employer did not sufficiently prove business necessity for the additional experience requirement of two years. The Employer did prove business necessity but did so with evidence not within the record during the original denial; therefore it could not be considered.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Posted On: June 28, 2011

BALCA Questions Materiality of Omissions on the PERM Form

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Baker.”

Certification was denied by the CO who cited that ETA Form 9089 was incomplete; specifically section F-4 (skill level) and M-3 (preparer’s title) had been left blank. A request for review was issued by the Employer who cited that the fields left blank were too minor to, “consider the form ‘incomplete’ and outright deny [the certification].” The Employer went on to further argue that in the past he had routinely left those same fields blank and certification had never been denied, therefore he should have the chance to correct the form. Included with the request for review, the Employer submitted corrected forms with the previously omitted fields completed. After the case was forwarded to BALCA and a Notice of Docketing was issued, the Employer filed a Statement of Intent to Proceed on April 23, 2010.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that an Employer filing for labor certification on behalf of an alien must submit a fully completed ETA Form 9089 (Application for Permanent Employment Certification). Applications that are not complete or that have missing fields will automatically be denied.

In the instant case, the Employer argued that the omissions were so insignificant that they did not have bearing on the decision of certification. BALCA found that while regulation states all applications must be fully complete, “some omissions may not be material to the review of the substance of an application.” BALCA found that the Employer made a sufficient argument that the omissions were not material and were provided elsewhere on the form. Additionally the CO offered no argument as to why the omissions were needed in completing a sufficient review of the case to determine certification.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.

Posted On: June 27, 2011

BALCA Assesses Feasibility of Training a U.S. Worker

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

An Audit Notification was issued by the CO to the Employer requesting a copy of the job order placed with the State Workforce Agency (SWA) and any other SWA related documents. A response to the audit was submitted by the Employer. Certification was thereafter denied by the CO on the grounds that the audit response material was insufficient to, “demonstrate that a U.S. worker could not be trained to qualify for the position.” The representative of the Employer requested a review of the case and argued that the owner’s illness, substantial growth and other factors prevented the Employer from training U.S. workers. The CO stood by his original decision and denied certification again. The case was then forwarded to BALCA and a Notice of Docketing was issued. In the Employer’s appellate brief, he argued an acceptable amount of evidence was presented to the show inability to train US workers for the position.

PERM regulation 20 C.F.R. § 656.17 (i)(3) controls and it provides, “the employer cannot require domestic worker applicants to posses training and/or expertise beyond what the alien possessed at the time of hire unless the employer can demonstrate it is no longer feasible to train a worker to qualify for the position.”

In the instant case, the Employer argued a “change in business conditions” was the prohibiting factor in training U.S. workers. In reviewing the case, BALCA did not agree with the Employer’s defense that it was impossible to train U.S. workers. Additionally, BALCA did not find that the Employer’s extenuating circumstances should have prevented the training of U.S. workers.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Posted On: June 24, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, June 24th, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas remain under the CAP?

Answer #1
As of June 17th, 2011, there were approximately 48,700 H-1B Regular CAP subject nonimmigrant visas remaining and 9,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.


Question #2 – Employment Based Immigration – Green Card
My priority date is current as of the July 2011 visa bulletin. I heard we could call and provide details of our case so that based on first come first call they would process and issue the GC.

Answer #2
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
A couple of our employees are nearing their 6th year on H-1B visa status, and they have approved I-140s in the EB2 category filed by different companies. Can we use those approved I-140s to get three year extensions with our company?

Answer #3
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.


Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How long can we continue to request three year extensions based on an approved I-140 when the applicant has exhausted his time on H-1B status?

Answer #4
You will be able to continue to request extensions up to a three year period until a visa number becomes available for the applicant pursuant to AC21 law.


Question #5 – Employment Based Immigration – Green Card
Last time I gave fingerprints was when I filed I-485 back in 2007. The fingerprints that the USCIS have on file may have expired. Should I take an appointment to give them a new set of fingerprints?

Answer #5
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.


Question #6 – Employment Based Immigration – Green Card
My daughter received her green card and her birthdate is incorrect on the card. How can I fix this?

Answer #6
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back to my community and was wondering being on H1-B, would I be able to hold a part-time teaching position at a university, if given the opportunity?

Answer #7
You would be able to hold a part-time teaching position at a university; however, the University must be willing to sponsor your H-1B visa. The University would have to go thru the normal process of preparing and filing the necessary forms and paying the necessary USCIS filing fees, if applicable, as well as paying all legal fees involved.


Question #8 – Temporary Work Visas
What is the grace period on an O-1 extension? I reside in New York, my current O1 visa expires on 7/25/2011 and I’ve filed for an extension on 4/17/2011. I have received a receipt notice.

Answer #8
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months. My case has been pending for four months already. Can you tell me why it is taking so long?

Answer #9
Although the USCIS processing times may state 2 months, you have to factor in that when it is posted, that data is already 45 days old. Also, due to the FY2011 H-1B CAP still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, I just want you to be aware of the background with the processing times for the H-1B nonimmigrant visa.


Question #10 – Employment Based Immigration – Green Card
Regarding changing jobs, is there a recommended wait time after the green card that I can change employers. On the EAD there was a 6mth after which I could do this, but was wondering after the GC if there is any such thing. Appreciate your answer.

Answer #10
Although the regulations are silent on this issue, we recommend that you wait at least six (6) months before changing your employer to avoid issues if you intend on applying for citizenship when you become eligible.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, July 8th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: June 23, 2011

Updated Service Center Processing Times

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on June 13th, 2011 with processing dates as of April 30, 2011.

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

**Please be aware that the data given above is approximately 45 days old at the time of posting.

If your petition is out-side of the normal range listed, contact USCIS. (1-800-375-5283)

If you are a client of MVP Law Group and would like our assistance please contact our office.

Posted On: June 22, 2011

BALCA Remands - Evidence of Employer's FEIN was Sufficient

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Animal Trainers.”

The Employer’s Application was denied by the CO who found the company to be illegitimate because the Employer did not have a valid Federal Employer Identification Number (FEIN). The CO did not issue an audit notification. In the Employer’s request for review copies of its business license, FEIN documentation, certificate of liability insurance, and income tax returns were included. In the reconsideration of the decision, the CO stated the Employer did prove sufficient evidence verifying the business license but there was no documentation to support the Employer’s FEIN. The CO also pointed out that no response had been received by the Employer after request had been sent to the Atlanta National Processing Center for proof of the Employer’s FEIN. The case was forwarded to BALCA; however, the Employer did not submit an appellate brief. In the Statement of Position, the CO argued that because the Employer failed to produce any documentation validating its FEIN he was unable to determine whether the company was legitimate and therefore had to deny certification.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i)-(ii) controls and it provides in a request for reconsideration of denial of labor certification an employer may submit documentation requested from the CO or documentation that the Employer did not have the opportunity to present when the application was originally filed.

In the instant case, certification was denied because the CO could not determine whether the company was a bona fide business entity. In reconsideration, documentation concerning the Employer’s FEIN was presented by the Employer that was not originally available at the time of filing. However, the CO still found that it could not determine if the company was bona fide. BALCA found that the Employer did provide information which lists the Employer’s FEIN and matches the number on the certification application, concluding that the CO’s denial was improper.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded the matter for further processing.

Posted On: June 21, 2011

LATEST UPDATE: H-1B FY2012 CAP COUNTS

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of June 17th, 2011, 16,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 17th, 2011, 10,800 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept H-1B petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2012 H-1B CAP updates!

Posted On: June 20, 2011

MVP "Immigration Q & A Forum" - This Friday, June 24th, 2011

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, June 24th, 2011. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Posted On: June 17, 2011

BALCA Vacated Denial - Issue: Alternative Job Requirements

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Programmer Analyst.”

The position advertised listed the minimum level of education required as a bachelor’s degree in computer science, information systems or computer engineering as well as 12 months experience in section H.4 and H.5 of the application. In Section H.8 the Employer also noted that just a bachelor’s with no experience or a foreign education equivalent would be acceptable for the position. Additionally, the Employer listed “system analysis & design, VB, C++, database design & development, MIS, operating systems, etc” in the section for specific skills and other requirements for the position. Certification was denied by the CO on the grounds that the alien only had a bachelor’s degree in information systems, no training or experience was listed to meet the requirements of the Employer. A request for review was submitted by the Employer who cited that a bachelor’s degree with no experience was an acceptable combination of education and experience. The case was then forwarded to BALCA and a Notice of Docketing was issued.

PERM regulation 20 C.F.R. § 656.16(i)(1) controls and it provides that the listed job requirements must match an Employer’s actual minimum job requirements.

In the instant case, the Employer does list on the application that he was willing to hire an individual with the required bachelor’s education and no experience as an alternative to the 12 months experience. The alien did meet the Employer’s alternative accepted education and experience requirements at the time of hiring. As a result, BALCA found the CO’s decision in denying certification unwarranted.

Accordingly, the Board vacated the decision of the CO in denying labor certification and returned the matter to the CO for completion of processing.

Posted On: June 15, 2011

BALCA Affirms Denial - Issue: Alternative Job Requirements

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

Certification was denied by the CO who cited the applicant did not meet the position’s education requirements or the minimum experience qualifications. The Employer thereafter requested reconsideration on the grounds that the alien had attended a university for one year and had fourteen and one-half years of experience. The CO noted that with the given information and the employer’s formula, the alien’s education and experience would be equivalent to 17 years. This translates to 12 years of experience required as the equivalent for a Bachelor’s degree plus five years experience. However, according to the Field Memorandum NO. 48-94, Policy Guidance on Labor Certification Issues (FM) a Bachelors’ degree is only equivalent to two years of experience, therefore a Bachelor’s degree plus five years experience is only equivalent to seven years experience. Since the Employer’s requirement of 17 years of experience was not “substantially equivalent” to the primary requirements for the job, the CO denied certification. The case was then forwarded to BALCA and the Employer filed an appellate brief. In the appellate brief, the Employer argued that “17 years of experience” had never been listed on the application for the position of “product manager.” The CO submitted a Statement of Position stating the Employer also submitted the application too many days after the end date of the SWA job order, violating regulation.

PERM regulation 20 C.F.R. § 656.17(i)(1)-(2) controls and it provides that an Employer must represent the actual minimum requirements for the position on an application and an Employer must not hire individuals with less training or experience for a position than set by the requirements.

In the instant case, BALCA found the Employer’s formula for equivalent experience was “a gross departure” from that determined by FM. The Employer would have required 17 years while the FM formula only required 7 years as an equivalent.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Posted On: June 13, 2011

BALCA Affirms Denial - Lack of Evidence of Ability to Pay

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

The Employer was issued an Audit Notification by the CO who requested additional documentation of recruitment as well as its ability to pay foreign workers the wage offered. The evidence requested included state payroll taxes for the last three years, federal income taxes statements for the last three years, list of current employees with their titles, work contracts, etc. The Employer responded to the audit; however the CO denied certification on the grounds that the Employer submitted no documentation to prove the ability to pay the $48, 200 per year offered to the foreign workers. Review was requested by the Employer who argued that because it’s a consulting company the amount of money available depends on the funds generated by clients. Even after the letter of reconsideration, the CO still found that the Employer did not sufficiently prove its ability to pay the wage offered to the foreign worker. The CO cited that the Employer’s 2007 tax return was only $9,855 after operating costs. BALCA issued a Notice of Docketing and the CO’s appellate brief provided evidence to show that the Employer did not “have sufficient funds to pay the wage offered to the Alien.”

PERM regulation 20 C.F.R. § 656.10(c)(3) controls and it provides that one part of the labor certification process is that the Employer must sufficiently prove the ability to pay the salary offered to the alien.

In the instant case, the documentation provided contradicted the Employer’s claim that he could adequately pay the offered wage to the foreign workers. The Employer’s taxable income was negative after deductions and even before deductions it was around $40,000 short of the salary offered to the alien. BALCA found the Employer submitted no evidence to show he had enough funds to pay the wage offered to the Alien.

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Posted On: June 10, 2011

MVP LAW GROUP – Immigration Q&A Forum, Friday, June 10th, 2011

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.


Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Potential employers keep telling me USCIS is no longer accepting H1B Visa petitions. I had the same answer from more than one employer. How can it be possible if the 2012 cap has not been reached? They told me I have to apply for an O1 visa...

Answer #1
I am not sure where these employers are obtaining their information from, as the H1B Regular Cap and Masters Cap for FY2012 remain open and petitions are readily accepted and processed by the USCIS for employment beginning October 1, 2011.


Question #2 – Employment Based Immigration – Green Card
Hi, I have a pending 485 application in EB3 category with a priority date of Oct 2006. I am interested in porting my EB3 application to EB2. Can I do this?

Answer #2
If you have the necessary education and experience you may qualify to port your earlier EB3 I-140 priority date to the new EB2 I-140 petition.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas remain under the CAP?

Answer #3
As of June 1st, 2011, there were approximately 51,400 H-1B Regular CAP subject nonimmigrant visas remaining and 10,700 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our h1bvisalawyer blog.


Question #4 – General
I work for a company in San Diego, California, a computer company. They have expressed an interest in sponsoring my green card. I have a friend in Maryland who used your firm for other immigration service and I wanted to know if I could use your firm to process my green card? With me in California and your firm in Maryland, can we do this, is it legal?

Answer #4
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.


Question #5 – Employment Based Immigration – Green Card
Is it true that once I got the I-140 I can find another company to sponsor me beyond my 6 years in case my current company will no longer continue my employment?

Answer #5
The American Competitiveness in the 21" Century Act of 2000 (AC21), which amends §204(j) of the Immigration and Nationality Act (INA) provides:

Job flexibility for long delayed applicants for adjustment of status to permanent residence. —A petition under subsection (a)(1)(D) for an individual whose application for adjustment of status pursuant to section 245 has been filed and remained un-adjudicated for 180 days or more shall remain valid with respect to a new job if the individual changes jobs or employers if the new job is in the same or similar occupational classification as the job for which the petition was filed.

This provision allows employment-based adjustment of status applicants (from any nonimmigrant status) whose I-485s have been pending for 180 days or more to change jobs or employers without invalidating the underlying Petition for Alien Worker (Form I-140) or certified Application for Alien Employment Certification (ETA Form 9089), as long as the new job is in the same or similar occupational classification as the one for which the Petition was filed.


Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since February 2011, no RFE issued yet. Can I contact USCIS for them to look further into the case and why it is taking so long. Is it true?

Answer #6
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, the applicant’s full name, your complete company mailing address, the applicant’s complete mailing address, the applicant’s date of birth, the applicant’s receipt number for the pending application/petition, and the filing date of the applicant’s pending application/petition. If your case is outside of the normal processing time, the Officer/Agent should initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 was denied and my employer has appealed the decision. My H1 is due to expire next January 2012 as I am currently in my 6th year. Can we apply for H1 extension based on pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #7
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 petition appeal at the Administration Appeals Office (AAO).


Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have to go for visa stamp in India. What documents should I have?

Answer #8
We recommend that you take the following with you to your visa appointment (by having all of this documentation you should be fully prepared and able to answer any questions that may arise concerning your petition) - all the required documents for any non-immigrant visa Plus; I-797 -- the original notice of approval; two (2) copies of the complete I-129 petition submitted by your prospective employer including the Labor Condition Application (LCA); the originals, plus one copy, of your university diplomas, mark sheets and any certificates you may have. (Secondary school information is not required); Letter from petitioning employer confirming employment; Original, plus one copy, of your work experience letters from your previous employers; Pay slips from current or most recent place of employment; Names and current phone numbers of the personnel managers at the applicant's present and past jobs; Photographs of the inside and outside of current or most recent employer's place of business; Names and contact information of two co-workers from your current or most recent place of employment; Names and contact information of two co-workers from past jobs; A complete resume/bio-data and cover letter describing current job duties in detail; Personal bank records for the last six months; and US company information: photographs of the inside and outside of the company's offices, prospectus, brochures, and annual report.


Question #9 – Family Based Immigration
My Grandfather (Dad's Dad) was a US citizen and he had filed an I-130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2007. Unfortunately, my grandfather passed away this April. My dad's sisters are U.S. citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

Answer #9
Under regulation 8 C.F.R. § 205.1(a)(3)(i)(C)(2), an I-130 petition is automatically revoked upon the death of the petitioner, unless:
USCIS determines, as a matter of discretion exercised for humanitarian reasons in light of the facts of a particular case, that it is inappropriate to revoke the approval of the petition. USCIS may make this determination only if the principal beneficiary of the visa petition asks for reinstatement of the approval of the petition and establishes that a person related to the principal beneficiary in one of the ways described in section 213A(f)(5)(B) of the Act is willing and able to file an affidavit of support under 8 C.F.R. part 213a as a substitute sponsor.

Only a spouse, parent, mother in law, father in law, sibling, child, son, daughter, son in law, daughter in law, brother in law, sister in law, grandparent, grandchild or legal guardian of the principal beneficiary is eligible to be a substitute sponsor. A substitute sponsor must also be a U.S. Citizen/national or Lawful Permanent Resident (LPR), be at least 18 years of age, be domiciled (live) in the U.S. and meet all of the financial requirements of a sponsor.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I just got my H-1B extension approved and they gave me valid I-94. Do I need to go home to obtain visa stamp in order to work?

Answer #10
If the beneficiary has been issued a valid I-94 but the beneficiary does not have a valid H1B visa in the passport, they can commence work with the petitioning employer. The beneficiary does not need current visa in their passport unless the beneficiary desires to travel. The beneficiary will probably be required to go to the beneficiary’s home country to obtain the H1B visa.


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

Our next “Immigration Q & A Forum” is scheduled for Friday, June 24th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

Posted On: June 9, 2011

July 2011 Visa Bulletin

The Department of State has released its latest Visa Bulletin.

Click here to view the July 2011 Visa Bulletin.

The July 2011 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.

**The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin.

Questions, contact MVP Law Group online or toll free at 1-800-447-0796.

Posted On: June 9, 2011

BALCA Affirms Denial - NOF with Wage Equal to 99.51% of Prevailing Wage is Insufficient

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

On Form ETA 9089 the Employer listed the offered wage and prevailing wage at $67,787.00 per year. An Audit Notification was issued by the CO requesting documentation including a copy of the Notice of Filing (NOF). A copy of the NOF was submitted as the Employer’s response to the Audit, listing the rate of pay as $67,454.00 per year. The application was denied by the CO on the grounds that the NOF listed a lower wage than the prevailing and offered wage. A request for reconsideration was submitted by the Employer arguing that labor certification should not be denied “based solely on the deficiency less than .50% of the prevailing wage.” However, the CO still denied certification after reconsideration and the case was then forwarded to BALCA. In the Employer’s appellate brief, he argued that the amount of $333 difference between the prevailing wage and NOF listed wage should be forgiven, since it equals 99.51% of the prevailing wage.

PERM regulation 20 C.F.R. § 656.17(f)(5) and (7) controls and it provides the Notice of Filing must list a wage equal or exceed the prevailing wage entered by the State Workforce Agency.

In the instant case, the wage listed on the NOF is less than the prevailing wage and less than the wage offered to the alien. BALCA found the $333 difference clearly violated the statutory requirement and the regulations at Section 656.17(f)(5) and (7).

Accordingly, the Board affirmed the decision of the CO in denying labor certification.

Posted On: June 8, 2011

LATEST UPDATE: H-1B FY2012 CAP COUNTS

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of June 1st, 2011, 13,600 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 1st, 2011, 9,300 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept H-1B petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Stay tuned to MVP Law Group for FY 2012 H-1B CAP updates!

Posted On: June 7, 2011

BALCA Reverses CO Decision - Employee Referral Program Sufficiently Documented

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Junior Trading Systems Developer.”

On the Application for Permanent Employment Certification accepted by the CO on September 14, 2007, the Employer listed the three additional recruitment steps taken to advertise the position. The steps included listing on a job search web site, advertising in a local newspaper as well as advertising with the employee referral program from July 10, 2007 to August 10, 2007. An audit was issued by the CO requesting documentation of the Employer’s employee referral program. Thereafter, certification was denied by the CO who cited the Employer failed to include dated copies for the advertising of its employee referral program. In a request for review to the CO, the Employer argued that the program is ongoing and every new hire is provided a copy of the memorandum. An email dated March 17, 2008 was also submitted to demonstrate the Employer regularly notified its employees of the program.

PERM regulation 20 C.F.R. § 656.12(e)(1)(ii)(G) controls and it provides as part of the three recruitment steps an Employer must fulfill as part of PERM regulations, one can be an employee referral program with incentives. The program can either be documented with “dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered.”

In the instant case, BALCA found the Employer sufficiently provided evidence of its employee referral program as a method of recruiting workers. Documents were submitted specifying the incentives offered, evidence was provided supporting the program was in existence at the time of recruitment, and over 90% of the applicants were a result of the employee referral program.

Accordingly, the Board reversed the decision of the CO and granted labor certification.

Posted On: June 6, 2011

MVP "Immigration Q & A Forum" - This Friday, June 10th, 2011

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, June 10th, 2011. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

Posted On: June 3, 2011

Secure Communities - Deportation with no prior criminal record

Opponents of the federal program called Secure Communities are speaking out in protest saying a program that was created to catch illegal immigrants with criminal records is now forcing individuals who are non-criminals to be deported.

According to the National Day Laborer Organizing Network, an estimated 1 in 4 individuals are deported by Secure Communities that had no prior criminal convictions. For instance, more than half the people in Franklin County, Ohio where Secure Communities was adopted in January 2010 were deported with no criminal record.

Many opponents of the program, like chairman of the Ohio Hispanic Coalition Joe Luis Mas are urging the President and the federal government to push immigration agents to focus on immigrants with convictions and change how Secure Communities works. Additionally, others like the spokesman for the National Day Laborer Organizing Network B. Loewe fear the program allows law enforcement to use racial profiling.

Posted On: June 2, 2011

USCIS Secure Mail Initiative

To help create a more safe, secure and timely way of delivering immigration documents, US Citizenship and Immigration Services (USCIS) recently implemented the Secure Mail Initiative (SMI).

The new SMI was created through a partnership between USCIS and USPS which utilizes priority mail and delivery confirmation of permanent resident cards, documents for travel and employment authorization. Additionally, SMI allows individuals to track and stay up-to-date on the status of their package through USPS tracking. Once an individual has been notified of an approval, they can call the USCIS Customer Service Center at 800-375-5283 to request tracking information. After receiving the tracking number, individuals can log on to www.usps.com to track their package.