H1B Visa Lawyer Blog

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 “Mixing and Blending Machine Setters, Operators & Tenders."

The employer filed a LC which was accepted for processing on May 17, 2007. ETA Form 9089 indicated that the position was a nonprofessional occupation. The CO denied certification on the grounds that the job order was not placed with the State Workforce Agency (SWA) for a period of 30 days in violation of the regulations. The Employer responded by requesting reconsideration stating that it had placed two different job orders but did not provide any supporting evidence that reflected proof of either of the posting dates listed on Form 9089. The Employer further added that “any errors are immaterial and minor in the overall effect and outcome of the labor certification.” The CO issued a letter of reconsideration finding that the application was denied because the job order placed with the SWA was not posted for a period of 30 days.

PERM Regulation 20 C.F.R. § 656.17 (e) controls and it provides:

(2) Nonprofessional occupations: If the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.

(i) Job Order. Placing a job order with the SWA serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.

In the instant case, the Employer did not place the job order with the SWA for a period of 30 days. As Form 9089 indicates, the first job order was placed for only a period of 29 days, and the second job order would have run afoul of the regulations, as it was filed less than 30 days before submission of the application. Additionally, the Employer did not produce any evidence of either of the job orders. BALCA stated that failure to post a job order for a period of thirty days is a substantive violation of the regulations.

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

Matter of Monir Attar, Inc.

As the American Immigration Lawyers Association (AILA) National Day of Action is swiftly approaching on March 25, 2010, we thought that it would be an appropriate time to provide some statistics on the Immigrant population in the United States as provided by research conducted through the Immigration Policy Center (IPC) of the American Immigration Counsel (AIC). The AILA National Day of Action is an opportunity to educate Members of Congress and their staff about the problems plaguing our immigration system so that they can be more effective in crafting, promoting and supporting legislative solutions.

The IPC has complied research on the Immigrant, Latino and Asian community for most of the states within our Nation. Every Wednesday, we will provide in our blog post, the highlights from the research conducted by the IPC.

Arkansas – The Natural State

The IPC has complied research which shows that Immigrants, Latinos and Asians are an essential part of Arkansas’s economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of the Natural State.

Below, please find the highlights from Arkansas:
 Immigrants made up 4.2% (or 118,405 people) of Arkansas’s population in 2007.
 28.1% of immigrants (or 33,316 people) in Arkansas were naturalized U.S. Citizens in 2007 who are eligible to vote.
 Latinos accounted for 5.2% (or 147,409 people) and Asians 1.2% (or 34,018 people) of Arkansans in 2007.
 The purchasing power of Latinos totaled $2.7 billion and Asian buying power totaled $972 million in Arkansas in 2008.
 If all unauthorized immigrants were removed from Arkansas, the state could lose $798 million in expenditures, $ 354 million in economic output, and approximately 6,660 jobs.

There is no denying the contributions Immigrants, Latinos and Asians make in Arkansas and the important role they will play in the state’s political and economic future. For more data on their contributions to the Natural State, view the IPC fact sheet in its entirety.

Immigration Reform will not come until we as a Nation are fully aware of the problems plaguing the current system.

The Immigration Policy Center (IPC) is the research and policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policy makers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion-makers and the media. IPC, formed in 2003 is a non-partisan organization that neither supports nor opposes any political party or candidate for office.

As the American Immigration Lawyers Association (AILA) National Day of Action is swiftly approaching on March 25, 2010, we thought that it would be an appropriate time to provide some statistics on the Immigrant population in the United States as provided by research conducted through the Immigration Policy Center (IPC) of the American Immigration Counsel (AIC). The AILA National Day of Action is an opportunity to educate Members of Congress and their staff about the problems plaguing our immigration system so that they can be more effective in crafting, promoting and supporting legislative solutions.

The IPC has complied research on the Immigrant, Latino and Asian community for most of the states within our Nation. Every Wednesday, we will provide in our blog post, the highlights from the research conducted by the IPC.

Arizona – The Grand Canyon State

The IPC has complied research which shows that Immigrants, Latinos and Asians are an essential part of Arizona’s economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of the Grand Canyon State.

Below, please find the highlights from Arizona:
 Immigrants made up 15.6% (or 991,584 people) of Arizona’s population in 2007.
 29.7% of immigrants (or 294,541 people) in Arizona were naturalized U.S. Citizens in 2007 who are eligible to vote.
 Latinos accounted for 29.7% (or 1,882,610 people) and Asians 2.4% (or 152,130 people) of Arizonans in 2007.
 The purchasing power of Latinos totaled $31.3 billion and Asian buying power totaled $5.8 billion in Arizona in 2008.
 If all unauthorized immigrants were removed from Arizona, the state could lose $26.4 billion in expenditures, $ 11.7 billion in economic output, and approximately 140,324 jobs.

There is no denying the contributions Immigrants, Latinos and Asians make in Arizona and the important role they will play in the state’s political and economic future. For more data on their contributions to the Grand Canyon State, view the IPC fact sheet in its entirety.

Immigration Reform will not come until we as a Nation are fully aware of the problems plaguing the current system.

The Immigration Policy Center (IPC) is the research and policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policy makers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion-makers and the media. IPC, formed in 2003 is a non-partisan organization that neither supports nor opposes any political party or candidate for office.

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 “Truck Driver."

The employer filed a LC which was accepted for processing on June 1, 2007. ETA Form 9089 indicated that knowledge of a foreign language was required to perform the job duties. The CO issued an Audit Notification letter requesting further documentation justifying the business necessity for this job requirement. The Employer responded by stating that the “job opportunity requires the capability to speak a foreign language because the products that the company hauls are shipped to Cuauhtemoc, Chihuahua, Mexico.” The Employer added that the community speaks either Spanish or German, and a truck driver who did not speak either of those languages would be at a disadvantage. Further, the employer asserted that the truck drivers it currently employs are fluent in English, Spanish and German. Thereafter the CO issued a denial letter; the Employer responded by requesting reconsideration and asked the CO what type of evidence it needed to submit to address the business necessity requirement and that it would be willing to provide any and all supporting documentation needed. The CO issued a letter of reconsideration indicating that the Employer had not justified its foreign language requirement by demonstrating business necessity.

PERM Regulation 20 C.F.R. § 656.17(h) controls and it provides:

(2) A foreign language requirement can not be included, unless it is justified by business necessity. Demonstrating business necessity for a foreign language requirement may be based upon the following:

(i) the nature of the occupation (e.g., translator); or
(ii) the need to communicate with a large majority of the employer’s customers, contractors, or employees who can not communicate effectively in English, as documented by:

(A) the employer furnishing the number and proportion of its clients, contractors, or employees who can not communicate in English, and/or a detailed plan to market products or services in a foreign country; and
(B) a detailed explanation of why the duties of the position for which certification is sought requires frequent contact and communication with customers, employees or contractors who can not communicate in English and why it is reasonable to believe the allegedly foreign-language-speaking customers, employees, and contractors can not communicate in English.

In the instant case, there is no evidence establishing that the occupation of “Truck Driver” normally requires a foreign language requirement, and only mere assertions were made to attempt to satisfy the business necessity requirement without any actual supporting documentation provided by the employer. BALCA stated that the Employer did not meet its burden of justifying the foreign language requirement by demonstrating a business necessity.

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

Matter of UMC Logistics, Inc.

The Administrative Appeals Office (AAO) Processing Times were released on March 2, 2010 with processing dates as of March 1, 2010.

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 13 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 24 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 24 months. Most other cases are within USCIS's processing time goal of 6 months or less.

Effective January 21, 2010, the Department of Labor's iCERT online system was updated to allow the submission of electronic prevailing wage determination requests. This electronic process was intended to allow Employers and/or their Designated Representatives to submit and obtain prevailing wage determinations (PWD) for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs through the iCERT portal. However, at this time, this federalized electronic process has caused delays in the issuance of prevailing wage determinations.

Prior to January 1, 2010, the date of enactment of the Federalized Process, employers and/or their designated representative were able to obtain PWDs from their State Workforce Agencies (SWAs), which normally took between two (2) to fourteen (14) days or even a months time. Currently, requestors are waiting between thirty (30) to sixty (60) days to obtain a response from the DOL further delaying the commencement of a new PERM case, or the filing of an AC-21 Portability Case.

Requestors who have submitted PWD requests to the NPWHC by U.S. Mail between January 1, 2010 and January 21, 2010, the launch date of the iCERT PWD System have received a response in regards to their PWD requests. However, at this time, there appear to be delays in the issuance of PWDs through the national DOL office with both hard copy and electronically submitted requests since January 21, 2010.

According to many interactive blog posts by various Immigration Law Firms, the DOL has reportedly not acted on any requests submitted online. The DOL has been advised of this situation and the effect that it has upon the Employment Based Green Card (PERM) and H-1B programs, as obtaining a PWD is the starting point in the PERM process for most foreign workers. Although the DOL is aware of the situation, no guidance, alternative route or explanation has been made available, as it is now March 4, 2010 and the delays continue.

You may still submit hard copy PWD requests to the address listed below:
U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center,
Attn: PWD Request:
1341 G Street, NW
Suite 201
Washington, DC 20005-3142

Or, you may submit electronic PWD requests through the iCERT portal.

Please be aware of the current delays and plan accordingly!

MVP Law Group will continue to monitor the situation and will provide you with any information that becomes available.

As the American Immigration Lawyers Association (AILA) National Day of Action is swiftly approaching on March 25, 2010, we thought that it would be an appropriate time to provide some statistics on the Immigrant population in the United States as provided by research conducted through the Immigration Policy Center (IPC) of the American Immigration Counsel (AIC). The AILA National Day of Action is an opportunity to educate Members of Congress and their staff about the problems plaguing our immigration system so that they can be more effective in crafting, promoting and supporting legislative solutions.

The IPC has complied research on the Immigrant, Latino and Asian community for most of the states within our Nation. Every Wednesday, we will provide in our blog post, the highlights from the research conducted by the IPC.

Alaska – The Last Frontier

The IPC has complied research which shows that Immigrants, Latinos and Asians are an essential part of Alaska’s economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of the Last Frontier.

Below, please find the highlights from Alaska:

 Immigrants made up 7.2% (or 48,928 people) of Alaska’s population in 2007.
 51.2% of immigrants in 2007 (or 25,046 people) in Alaska were naturalized U.S. Citizens who are eligible to vote.
 Latinos accounted for 2.6% (or 8,000 people) and Asians 2.3% (or 7,000 people) of Alaskans in 2008.
 The purchasing power of Latinos totaled $1.2 billion and Asian buying power totaled $1.1 billion in Alaska in 2009.
 If all unauthorized immigrants were removed from Alaska, the state could lose $484.7 million in expenditures, $ 215.3 million in economic output, and approximately 1,980 jobs.

There is no denying the contributions Immigrants, Latinos and Asians make in Alaska and the important role they will play in the state’s political and economic future. For more data on their contributions to the Last Frontier, view the IPC fact sheet in its entirety.

Immigration Reform will not come until we as a Nation are fully aware of the problems plaguing the current system.

The Immigration Policy Center (IPC) is the research and policy arm of the American Immigration Council. IPC's mission is to shape a rational conversation on immigration and immigrant integration. Through its research and analysis, IPC provides policymakers, the media, and the general public with accurate information about the role of immigrants and immigration policy on U.S. society. IPC reports and materials are widely disseminated and relied upon by press and policy makers. IPC staff regularly serves as experts to leaders on Capitol Hill, opinion-makers and the media. IPC, formed in 2003 is a non-partisan organization that neither supports nor opposes any political party or candidate for office.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on February 17, 2010 with processing dates as of December 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 are a client of the MVP Law Group and would like our assistance please contact our office.

The Administrative Appeals Office (AAO) Processing Times were released on February 17, 2010 with processing dates as of February 1, 2010.

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 14 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 25 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 23 months. Most other cases are within USCIS's processing time goal of 6 months or less.

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the Professional position of “Photographer."

The employer filed a LC which was accepted for processing on May 21, 2007. ETA Form 9089 indicated that the State Workforce Agency (SWA) determined the prevailing wage to be $7.31 per hour, and the skill level, “Professional.” Additionally, the employer did not provide a name or date of the second newspaper or professional journal advertisement. The Employer had attached several documents to ETA Form 9089, including documents showing the Alien’s qualifications and visa status; a March 2007 job order placed with the NY State Department of Labor; a print out of a www.flcdatacenter.com web page showing the Occupational Employment Statistics (OES) wages for a photographer in the Middleton, NY area; tear sheets from one newspaper advertisement; and resume and interview notes for a couple of the rejected job applicants. The CO thereafter issued a letter denying certification based on the fact that the Employer had not selected a proper Skill Level, and did not provide the name of the second advertisement or professional journal. The employer then requested reconsideration by submitting a copy of the OES print out indicating that no skill level was set for the position of Photographer, and provided evidence of several additional newspaper advertisements. The record indicates that the Employer was asked to provide a copy of the SWA PWD to the DOL analyst and submitted a new SWA PWD for 2009, instead of one dated for 2007. The CO determined that its basis for denial was valid and forwarded the appeal file to BALCA.

PERM Regulation 20 C.F.R. § 656.24(a) controls and it provides that the employer must request a prevailing wage determination from the SWA having jurisdiction over the proposed area of intended employment. The SWA must enter its wage determination on the form it uses and return the form with its endorsement to the employer. Furthermore, the employer must maintain the SWA PWD in its files and be prepared to submit it if requested in the course of an audit.
In the instant case, the Employer should have obtained a PWD from the SWA prior to filing ETA Form 9089, and entered the skill level assigned by the SWA on Form 9089. However, the Board found that it may be possible that the Employer did not understand that what the CO was asking for was the 2007 PWD that the Employer should have obtained prior to filing and not a new PWD. Subsequently, the Board provided that fundamental fairness requires that the Employer be given a second opportunity to produce the relevant PWD.

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

Matter of Galaxy Studios, Inc.

The American Immigration Lawyers Association (AILA) U.S. Customs and Border Protection (CBP) Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies.

The CBP inspector’s questions focused on (1) who the individuals worked for, (2) how their pay was computed, (3) who paid their salary, (4) their job duties, and (5) what they were paid. According to the reports, some individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters about these alleged incidents, the CBP Liaison Committee was advised that many of the cases involved in the allegations involved companies currently under investigation by U.S. Immigration and Customs Enforcement (ICE) and/or U.S. Citizenship and Immigration Services (USCIS) for ongoing fraud. The CBP provided that upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal was based on “the totality of the circumstances” and was reviewed on a “case-by-case” basis. The CBP also confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

AILA was provided with additional news regarding a new policy instituted at Newark Airport dealing with random checks of returning H-1B, L-1 and other employment-based visa holders. Based upon the initial check, if the person’s admissibility is questionable, then he or she will be sent to secondary inspection for further review, and if questions still surround the person’s admissibility they may possibly be asked to withdraw his/her application for admission to the U.S. or be subject to expedited removal.

The Newark Airport port of entry has another policy regarding Lawful Permanent Residents (LPRs). The Airport has a mandatory detention policy for returning LPRs who have a post-1998 conviction. There are several exceptions to detainment for humanitarian reasons, and if the CBP cannot get a copy of the conviction record within 24 hours, the person may be released.

Moving Forward:
Employment Based Immigration applicants - If you must travel outside of the U.S., you should thoroughly prepare for your return trip to the U.S. by reviewing all pertinent documents, as well as carrying certain evidence to support assertions made in the petition. Certain evidence may include but is not limited to the following: pay stubs, employment verification letter, income tax returns, W-2 Forms, Employment offer letter, Employment Agreement.

Petitioning Employers – You must be prepared for inquiries from CBP officers to confirm the assertions made in any nonimmigrant petition. Additionally, you should keep and maintain adequate employee personnel and inspection files, and keep public information as accurate and current as possible.

Additionally, please note that the USCIS has revised I-797 Approval notices to include the following fraud related language:

NOTICE – Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Source: AILA InfoNet Doc. No. 10020237 (Posted 2/2/2010)

The Department of State has released its latest Visa Bulletin.

The March 2010 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.

Already applied in EB3, thinking about filing in EB2...if you are eligible, contact MVP Law Group toll free at 1-800-447-0796.

Filed in EB3 or EB2 and still waiting...and married to a U.S. Citizen or Permanent Resident?...you may be eligible to file a Family Based Immigrant Petition for faster processing. Questions, contact MVP Law Group toll free at 1-800-447-0796.

Click here to view the March 2010 Visa Bulletin.

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

The employer filed a LC which was accepted for processing on June 5, 2006. On September 20th, the CO denied the application because several required selections on the form had not been made by the Employer. The Employer thereafter requested reconsideration at the end of October. In its request for reconsideration, the Employer’s attorney provided responses to the omissions and believed that the request for reconsideration was to determine that the 30 day deadline had not elapsed. The Employer argued that each of the omissions was not material to the adjudication of the application as other information provided within the form answered the essential questions posed by the form. The Employer clearly stated in the motion for reconsideration that it was providing reasons for omissions in the event that the CO accepted the motion despite its lack of timeliness. Thereafter the CO accepted the Employer’s explanations for several of the selections, but found that the denial was valid because the Employer still did not provide information on what should be completed for the omitted selections. On appeal, the CO moved to dismiss the appeal on the ground that it was not timely. The Employer thereafter filed a response opposing the CO’s motion to dismiss.

PERM Regulation 20 C.F.R. § 656.17(a) controls and it requires that an employer who desires to apply for a labor certification on behalf of an alien must file a completed Department of Labor (DOL) Application for Permanent Employment Certification (ETA Form 9089). The regulation goes on to provide that incomplete applications will be denied. In the instant case, the Board found that the CO waived the issue of timeliness and made their decision based upon the materiality of the omissions. The Board recognized that some omissions may not be material to the review of the substance of an application and stated that the Employer made reasonable arguments as to why, in context, the omissions all were not material; however, the CO proffered no explanation for why the omissions prevented a complete review of the application.

Accordingly, the Board declined to affirm the decision of the CO in denying labor certification and returned the matter to the CO for the issuance of a labor certification.

Matter of Ben Pumo

The Administrative Appeals Office (AAO) Processing Times were released on January 28, 2010 with processing dates as of January 4, 2010.

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 13 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 24 months; for an I-140EB3 Appeal for a Skilled or Professional Worker is 23 months. Most other cases are within USCIS's processing time goal of 6 months or less.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on January 15, 2010 with processing dates as of November 30, 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 are a client of the MVP Law Group and would like our assistance, please contact our office.

FYI - The American Immigration Lawyers Association (AILA) has reported a glitch in the issuance of Advance Parole Documents during the first part of January 2010. The date of issuance on the documents is noted as January 1990 instead of 2010.

USCIS has identified all of the cases in which the wrong date was issued, and will issue revised forms as soon as the software issue is corrected.

***No further action will be necessary to receive a corrected document***

If you need to travel urgently and you have received a document with an invalid issue date, then you may travel using the incorrect document. U.S. Customs & Border Protection (CBP) has been alerted however, you may be questioned about the issuance date. Therefore, please print this explanation to share with CBP if necessary.

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant

OR

$200 + $50(admin fee) if filing either EAD or Advance Parole separately

Our normal legal fees are $250 + $50(admin fee) per application

**If an RFE is received, an additional legal fee will be required to respond**

Contact our office to process your EAD and Advance Parole Renewal!

FREQUENTLY ASKED QUESTIONS:

Question: How soon can I renew my EAD and Advance Parole (AP)?
Answer: You can file the renewal 120 days prior to the expiration date. However, AP applicants are advised to reapply within 30 days or less remaining on their current I-131 document.

Question: I have a valid H-1B. Do I need to renew EAD and AP?
Answer: No. You do not have to renew your EAD or AP. According to the new USCIS guidance issued last November, People on L1 or H-1B status can travel without AP. However, it is advisable to renew the EAD and AP as a precautionary measure if you plan to travel. For instance, if you travel outside the U.S. and you are not allowed back into the U.S. by customs on H-1B for any given reason, you can always come back in with AP and ensure that your adjustment of status proceeding continues.

Question: My spouse has H4 and is currently not working; do I need to renew EAD? Can I renew later when I need it?
Answer: You do not need to renew EAD. You can reapply for EAD anytime while your I-485 is pending.

Question: How long does it take to get a new EAD and AP?
Answer: Current processing times can be viewed on the USCIS website.

Question: My H-1B is expiring, should I extend H-1B or be on EAD?
Answer: You can work on EAD while your adjustment of status application (I-485) is pending. However, in the unforeseen event that your adjustment of status application is denied by the USCIS, you would fall out of status. Therefore, it is a good idea to maintain H-1B status as long as you can. However, this is decision that you have to make.

Question: Can I renew AP while I am outside the U.S.?
Answer: No

Question: What happens if my EAD expires and I’m still waiting for an approval of 485 while I am working?
Answer: If not on valid H-1B/L status, you cannot work until you get an approval.

Question: If I am currently on O1 status, and would like to travel, should I apply for AP and EAD, or just AP?
Answer: If you are on a nonimmigrant status other than H-1B, H-4, L-1, or L-2, you should obtain an AP, but EAD is not needed. Problems could occur while traveling, especially when attempting to reenter the U.S. Therefore, it is recommended that if you are not on H-1B/L status, that you should obtain both an EAD and AP if you wish to travel outside the U.S. while your I-485 is pending.

Question: What is the validity period for the EAD card?
Answer: As of June 30, 2008, USCIS will issue EAD valid for two years for individuals who qualify. The new two-year EAD is only available to individuals who have filed Adjustment of status I-485 and are unable to become a lawful permanent resident because an immigrant visa number is not currently available.

Effective January 21, 2010, the Department of Labor's iCERT online system will be updated to allow the submission of electronic prevailing wage determination requests. This electronic process will allow Employers and/or their Designated Representatives to submit and obtain prevailing wage determinations (PWD) for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs through the iCERT portal.

Until January 21, 2010, all prevailing wage determination requests must continue to be submitted by U.S. Mail or comparable physical delivery service to the Washington, D.C. address listed below.

BACKGROUND - On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration's (ETA) appropriate National Processing Center (NPC)--which was designated as the Chicago NPC.

Furthermore, effective as of January 1, 2010, the Final Rule also federalized PWD for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, E-3 (Australia), and the permanent labor certification programs.

Requestors must submit PWD requests using the Application for Prevailing Wage Determination, Form ETA-9141.

Requestors must submit PWD requests to the NPWHC by U.S. Mail or comparable physical delivery service at the following address until January 21, 2010 when electronic means are available:
U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center,
Attn: PWD Request:
1341 G Street, NW
Suite 201
Washington, DC 20005-3142

In summary, State Workforce Agencies (SWAs) and the Chicago NPC no longer accept and process PWD requests received on and after January 1, 2010. All PWD Requests submitted on and after 1/1/2010 must be centralized and processed at the DOL Washington, D.C. office until electronic means are available on January 21, 2010.

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 “Dental Assistant."

The employer filed a LC which was accepted for processing on January 16, 2007. ETA Form 9089 indicated that the job required a high school education and twenty-four (24) months of experience in the job offered. The CO issued an Audit Notification letter indicating that the O*Net indicates that one (1) year of experience is normal for the occupation and specifically directed the Employer to establish business necessity for its two (2) year requirement. The Employer responded to the Audit Notification but failed to address the business necessity issue. Thereafter the CO issue a denial letter, the Employer responded by requesting reconsideration and submitted a letter regarding why two (2) years experience was required for the position. The CO issued a letter of reconsideration indicating that the new letter constituted new evidence that was not in the record at the time that the application was filed and on which the denial was based.

PERM Regulation 20 C.F.R. § 656.20(b) controls and it provides that when an application is audited, the audit procedure specifies that a substantial failure by the employer to provide required documentation will result in that application being denied. In the instant case, the CO’s Audit Notification specifically requested that the Employer document the business necessity for its two (2) year experience requirement. BALCA stated that the failure to address the business necessity was clearly a substantial failure to provide documentation required by the audit notification. In addition, the regulations governing motions for reconsideration provided that the request for reconsideration may not include evidence not previously submitted.

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

Matter of Dr. Haig Rickerby Dental Office

The Department of State has released its latest Visa Bulletin.

The February 2010 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.

Already applied in EB3, thinking about filing in EB2...if you are eligible, contact MVP Law Group toll free at 1-800-447-0796.

Click here to view the February 2010 Visa Bulletin.

The Administrative Appeals Office (AAO) Processing Times were released on December 31, 2009 with processing dates as of December 2, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 12 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 26 months. Most other cases are within USCIS's processing time goal of 6 months or less.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on December 16, 2009 with processing dates as of October 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 are a client of the MVP Law Group and would like our assistance, please contact our office.

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant

$200 + $50(admin fee) if filing either EAD or Advance Parole separately

Our normal legal fees are $250 + $50(admin fee) per application

**If an RFE is received, an additional legal fee will be required to respond**

Contact our office to process your EAD and Advance Parole Renewal!

The required documents for filing an EAD renewal are as follows:
1. copy of current EAD card (front and back)
2. copy of I-485 receipt notice
3. copy of I-765 approval notices
4. two (2) colored passport style photographs for each applicant
5. application fee $340 each (Check made payable to U.S. Department of Homeland Security- DO NOT ABBREVIATE)

The required documents for filing an AP renewal are as follows:
1. copy of current Advance Parole approval
2. copy of current status for each applicant; (For example, if on H1B, a copy of current H1B approval notice, etc.)
3. copy of I-485 receipt notice
4. two (2) colored passport style photographs for each applicant
5. application fee $305 (Check made payable to U.S. Department of Homeland Security – DO NOT ABBREVIATE)

FREQUENTLY ASKED QUESTIONS:

Question: How soon can I renew my EAD and Advance Parole (AP)?
Answer: You can file the renewal 120 days prior to the expiration date. However, AP applicants are advised to reapply within 30 days or less remaining on their current I-131 document.

Question: I have a valid H-1B. Do I need to renew EAD and AP?
Answer: No. You do not have to renew your EAD or AP. According to the new USCIS guidance issued last November, People on L1 or H-1B status can travel without AP. However, it is advisable to renew the EAD and AP as a precautionary measure if you plan to travel. For instance, if you travel outside the U.S. and you are not allowed back into the U.S. by customs on H-1B for any given reason, you can always come back in with AP and ensure that your adjustment of status proceeding continues.

Question: My spouse has H4 and is currently not working; do I need to renew EAD? Can I renew later when I need it?
Answer: You do not need to renew EAD. You can reapply for EAD anytime while your I-485 is pending.

Question: How long does it take to get a new EAD and AP?
Answer: Current processing times can be viewed on the USCIS website.

Question: My H-1B is expiring, should I extend H-1B or be on EAD?
Answer: You can work on EAD while your adjustment of status application (I-485) is pending. However, in the unforeseen event that your adjustment of status application is denied by the USCIS, you would fall out of status. Therefore, it is a good idea to maintain H-1B status as long as you can. However, this is decision that you have to make.

Question: Can I renew AP while I am outside the U.S.?
Answer: No

Question: What happens if my EAD expires and I’m still waiting for an approval of 485 while I am working?
Answer: If not on valid H-1B/L status, you cannot work until you get an approval.

Question: If I am currently on O1 status, and would like to travel, should I apply for AP and EAD, or just AP?
Answer: If you are on a nonimmigrant status other than H-1B, H-4, L-1, or L-2, you should obtain an AP, but EAD is not needed. Problems could occur while traveling, especially when attempting to reenter the U.S. Therefore, it is recommended that if you are not on H-1B/L status, that you should obtain both an EAD and AP if you wish to travel outside the U.S. while your I-485 is pending.

Question: What is the validity period for the EAD card?
Answer: As of June 30, 2008, USCIS will issue EAD valid for two years for individuals who qualify. The new two-year EAD is only available to individuals who have filed Adjustment of status I-485 and are unable to become a lawful permanent resident because an immigrant visa number is not currently available.

The Department of State has released its latest Visa Bulletin.

The January 2010 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the January 2010 Visa Bulletin.

Effective January 1, 2010, the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration's (ETA) appropriate National Processing Center (NPC)--which was designated as the Chicago NPC.

Furthermore, beginning on January 1, 2010, the Final Rule also federalized PWD for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, E-3 (Australia), and the permanent labor certification programs.

Requestors must submit PWD requests using the Application for Prevailing Wage Determination, Form ETA-9141.

Requestors must submit PWD requests to the NPWHC by U.S. Mail or comparable physical delivery service at the following address:
U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center,
Attn: PWD Request:
1341 G Street, NW
Suite 201
Washington, DC 20005-3142
*The DOL is in the process of developing an electronic means for the submission of PWD requests. Until this process is completed, all PWD requests made on and after 1/1/2010 must be submitted via hard copy to the address provided above.

In summary, State Workforce Agencies (SWAs) and the Chicago NPC are to Cease Processing PWD Requests Received on and After January 1, 2010. All PWD Requests on and after 1/1/2010 will be centralized and processed at the DOL Washington, D.C. office.

The one exception to this is PWD requests for the Commonwealth of the Northern Mariana
Islands (CNMI); the NPWHC will begin receiving and processing those effective November 28, 2009.

74 FR 63796 (12/4/09)

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on November 16, 2009 with processing dates as of September 30, 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 are a client of the MVP Law Groupand would like our assistance, please contact our office.

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

The Administrative Appeals Office (AAO) Processing Times were released on November 4, 2009 with processing dates as of November 1, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 13 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 27 months. Most other cases are within USCIS's processing time goal of 6 months or less.

The United States Citizenship and Immigration Service (USCIS) has recently issued a fact sheet reminding qualifying applilcants to apply EARLY for an Advance Parole document, as Advance Parole processing times take about 90 days.

The list of applicants who must obtain an Advance Parole document before traveling outside of the United States is as follows:

• Applicants that have been granted Temporary Protected Status (TPS);
• Applicants with a pending application for adjustment of status to lawful permanent resident (LPR);
• Applicants with a pending application for relief under section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA 203);
• Applicants with a pending asylum application; or
• Applicants with a pending application for legalization

If you are an Appllicant with a pending Application for Adjustment of Status to Lawful Permanent Resident (LPR) and need assistance with filing Form I-131, contact our office, as we currently have a SPECIAL running for the preparation and filing of the Advance Parole document.

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant
$200 + $50(admin fee) if filing either EAD or Advance Parole separately
Our normal legal fees are $250 + $50(admin fee) per application
**If an RFE is received, an additional legal fee will be required to respond**

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 nonprofessional position of “Drywall taper."

The employer filed a LC which was mailed on September 20, 2006 and accepted for processing on September 22, 2006. ETA Form 9089 indicated that the State Workforce Agency (SWA) job order was run from March 22, 2006 through March 26, 2006. The CO issued a denial letter on July 5, 2007 on the basis that the job order was completed more than 180 days prior to the submission of the labor application.

PERM Regulation 20 C.F.R. § 656.17(e)(2) controls and it provides that if the application is for a nonprofessional occupation, the employer must place a job order no more than 180 days before the filing of the application. Furthermore, the filing date for a mailed application is the date the CO stamps it as received, not the postmark date. In the instant case, the SWA job order was placed 184 days prior to the CO’s date stamp. Even if the date was calculated from when the employer shipped the application, the SWA job order was still untimely.

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

Matter of The Drywall Doctors

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on October 18, 2009 with processing dates as of August 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 are a client of the MVP Law Group and would like our assistance, please contact our office.

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 Electrical Helper.

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO denied the application because he was unable to verify the Employer as a bona fide business entity. The Employer requested reconsideration by submitting its 2006 Federal Corporate Tax Return, its Business Certificate Registration and two utility bills. The Federal Employer Identification Number (FEIN) provided on the 2006 Tax Return only matched the first two digits of the FEIN previously provided on Form ETA 9089. Furthermore, the utility bills and the tax return provided a different address from that on the Business Certificate Registration. Thereafter, the CO issued a letter denying reconsideration because the FEIN on the corporate tax return did not match the FEIN on ETA Form 9089. The CO then forwarded the case to BALCA. The Employer filed a letter stating that its company had two addresses, one for its motor shop and the other for its main office, the CO did not file an appellate brief with the Board.

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. An employer MUST possess a valid FEIN when applying for labor certification pursuant to PERM regulation 20 C.F.R. § 656.3. In the present case, there was a discrepancy in the FEIN provided in ETA Form 9089 and in the 2006 tax return; however, the Employer failed to explain the discrepancy.

Accordingly, since the discrepancy in the FEINS was not clarified, the Board affirmed the CO’s denial of certification.

$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant

$200 + $50(admin fee) if filing either EAD or Advance Parole separately

Our normal legal fees are $250 + $50(admin fee) per application

**If an RFE is received, an additional legal fee will be required to respond**

Contact our office to process your EAD and Advance Parole Renewal!

The required documents for filing an EAD renewal are as follows:
1. copy of current EAD card (front and back)
2. copy of I-485 receipt notice
3. copy of I-765 approval notices
4. two (2) colored passport style photographs for each applicant
5. application fee $340 each (Check made payable to U.S. Department of Homeland Security- DO NOT ABBREVIATE)

The required documents for filing an AP renewal are as follows:
1. copy of current Advance Parole approval
2. copy of current status for each applicant; (For example, if on H1B, a copy of current H1B approval notice, etc.)
3. copy of I-485 receipt notice
4. two (2) colored passport style photographs for each applicant
5. application fee $305 (Check made payable to U.S. Department of Homeland Security – DO NOT ABBREVIATE)

FREQUENTLY ASKED QUESTIONS:

Question: How soon can I renew my EAD and Advance Parole (AP)?
Answer: You can file the renewal 120 days prior to the expiration date. However, AP applicants are advised to reapply within 30 days or less remaining on their current I-131 document.

Question: I have a valid H-1B. Do I need to renew EAD and AP?
Answer: No. You do not have to renew your EAD or AP. According to the new USCIS guidance issued last November, People on L1 or H-1B status can travel without AP. However, it is advisable to renew the EAD and AP as a precautionary measure if you plan to travel. For instance, if you travel outside the U.S. and you are not allowed back into the U.S. by customs on H-1B for any given reason, you can always come back in with AP and ensure that your adjustment of status proceeding continues.

Question: My spouse has H4 and is currently not working; do I need to renew EAD? Can I renew later when I need it?
Answer: You do not need to renew EAD. You can reapply for EAD anytime while your I-485 is pending.

Question: How long does it take to get a new EAD and AP?
Answer: Current processing times can be viewed on the USCIS website.

Question: My H-1B is expiring, should I extend H-1B or be on EAD?
Answer: You can work on EAD while your adjustment of status application (I-485) is pending. However, in the unforeseen event that your adjustment of status application is denied by the USCIS, you would fall out of status. Therefore, it is a good idea to maintain H-1B status as long as you can. However, this is decision that you have to make.

Question: Can I renew AP while I am outside the U.S.?
Answer: No

Question: What happens if my EAD expires and I’m still waiting for an approval of 485 while I am working?
Answer: If not on valid H-1B/L status, you cannot work until you get an approval.

Question: If I am currently on O1 status, and would like to travel, should I apply for AP and EAD, or just AP?
Answer: If you are on a nonimmigrant status other than H-1B, H-4, L-1, or L-2, you should obtain an AP, but EAD is not needed. Problems could occur while traveling, especially when attempting to reenter the U.S. Therefore, it is recommended that if you are not on H-1B/L status, that you should obtain both an EAD and AP if you wish to travel outside the U.S. while your I-485 is pending.

Question: What is the validity period for the EAD card?
Answer: As of June 30, 2008, USCIS will issue EAD valid for two years for individuals who qualify. The new two-year EAD is only available to individuals who have filed Adjustment of status I-485 and are unable to become a lawful permanent resident because an immigrant visa number is not currently available.

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

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 “Care Provider."

The employer filed an application for LC which was accepted for processing on January 30, 2008. On February 15, 2008, the CO denied certification on several grounds, one being that the Job Order was placed less than 30 days prior to the date the application was filed in violation of the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it provides that if the application is for a nonprofessional occupation, the employer must at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application. The employer must place a job order with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days. The start and end dates of the job order entered on the application serve as documentation of this step.

The Employer acknowlegded the timing fact, but blamed its non-compliance on the SWA; however, it is the employer's responsibility to comply with filing requirements. As such, the Board found that the CO properly denied certification.

To read the entire decision: Maria's Home for the Aged

The United States Citizenship and Immigration Services (USCIS) has extended information collection for Form I-140, Immigrant Petition for Alien Worker until October 28, 2009.

During this period, USCIS will be evaluating whether to revise Form I-140.

Members of the public are encouraged to submit comments and/or suggestions to USCIS, especially comments regarding the estimated public burden and associated response time.

Written comments and suggestions from the public and affected agencies should address one or more of the following four points:

(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

These comments/suggestions should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer.

Comments may be submitted to:
USCIS,
Chief, Regulatory Products Division, Clearance Office,
111 Massachusetts Avenue
Washington, DC 20529-2210.

Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at rfs.regs@dhs.gov.

Comments may also be submitted to the OMB USCIS Desk Officer via facsimile at 202-395-5806 or via e-mail at oira_submission@omb.eop.gov.
**When submitting comments by e-mail, please make sure to add OMB Control No. 1615-0015 in the subject box.

The Administrative Appeals Office (AAO) Processing Times were released on October 1, 2009 with processing dates as of October 1, 2009

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

The current processing time for an I-129 H-1B Appeal is 13 months. The current processing time for an I-140 EB2 Appeal for an Advanced Degree Professional is 27 months. Most other cases are within USCIS's processing time goal of 6 months or less.

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 “Financial Manager."

The employer filed an application for LC which was accepted for processing on April 12, 2007. Form 9089 provided that the State Workforce Job Order had a start date of February 5, 2005 and an end date of February 13, 2005. The CO thereafter denied certification on several grounds, one being that the Job Order was not placed for a period of 30 days as required by the governing regulations.

PERM Regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that an employer must place a job order with the SWA serving the area of intended employment for a period of 30 days for professional occupations. The start and end dates of the job order entered on the application shall serve as documentation of this step.

The Employer failed to address the timing issue, and as such, the Board had to affirm the decision of the CO in denying labor certification.

To read the entire decision: Matter of Pacific Lumber Supply, Inc.

Do you have questions about the status of your pending Employment Based I-485 Petition?

Hopefully the Q&A created by the USCIS will help ease your frustration and answer some of your questions.

Following the Q&A are I-485 Employment Based Inventory Statistics, which provide an explanation as to how to interpret them. The Inventory Statistics are categorized by Country and Priority Date.

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 “Specialty Cook/Italian."

The employer filed a LC which was accepted for processing on June 13, 2006. Thereafter, the CO issued an audit notification letter requesting among other documents, the Employer’s Notice of Filing. The employer submitted its Notice of Filing, yet the Notice failed to provide the CO’s address or any other means of contacting the CO. As such, the CO issued a denial letter.

PERM Regulation 20 C.F.R. § 656.10(d)(3) controls and it provides that the Notice of Filing must (i) State that the notice is being provided as a result of the filing of an application for permanent alien labor certification for the relevant job opportunity; (ii) State that any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor; (iii) Provide the address of the appropriate Certifying Officer; and (iv) Be provided between 30 and 180 days before filing the application.

The purpose of the regulation is to allow any person to submit documentary evidence bearing on the application for certification to the Certifying Officer (such as information on available workers, information on wages and working conditions, and information on the Employer’s failure to meet the terms and conditions with respect to the employment of alien workers and co-workers). By omitting the CO’s address and contact information, the purpose of the Notice of Filing was defeated.

As such, the Board had to affirm the decision of the CO in denying labor certification.

To read the entire decision: Matter of Ron Lopes, LLC

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on September 14, 2009 with processing dates as of July 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.

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

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 “Office Clerk, General."

The employer filed a LC which was accepted for processing on October 16, 2006. Form ETA 9089 provided that the State Workforce Agency (SWA) job order had been placed from September 5, 2006 until October 6, 2006. On August 10, 2007, the CO denied labor certification because the application was filed less than 30 days after the end of the job order. The Employer then submitted a request for review, requesting that its previous SWA job order, commencing on August 22, 2006, be used instead of the job order placed on September 5, 2006. Accordingly, in October of 2008, the CO thereafter denied reconsideration on the ground that the employer’s evidence did not support a changing of the SWA job orders.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, but did not file an appellate brief. The CO filed a brief arguing that its decision should be affirmed by the Board.

Continue reading "BALCA upholds denial of Labor Certification – Employer Submitted Labor less than 30 days after end of SWA job order" »

According to a recent AILA Liaison Committee meeting, I-485, Adjustment of Status applicants who intend to file for their second or subsequent I-131 reentry permit should file with 30 days or less remaining on the previous valid I-131 document…otherwise an RFE will most likely be issued asking for the valid travel document before a new I-131 is issued to the applicant...

For more information, do not hesitate to contact our office at (240) 390-0600

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on August 14, 2009 with processing dates as of June 30, 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.

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 “Supervisor/Service Manager.”

The employer filed a LC requiring seven years of experience in the job offered, and the case was later selected for audit. The Audit letter requested that the Employer provide proof of business necessity for the excessive experience requirement, and submission of its recruitment report, among other documents. After the Employer submitted its response, the CO denied certification based on failure to prove business necessity.

The CO then forwarded the case to BALCA. The Employer filed an Appeal by letter which included an argument from the Employer’s President explaining why the Employer needed the Alien’s skills in speaking English, French and Spanish, but did not address why the experience requirement was so long. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(h)(1) controls and provides that “The job opportunity's requirements, unless adequately documented as arising from business necessity, must be those normally required for the occupation and must not exceed the Specific Vocational Preparation level assigned to the occupation as shown in the O*NET Job Zones. To establish a business necessity, an employer must demonstrate that the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer's business and are essential to perform the job in a reasonable manner.” In the present case, the Employer’s requirement of seven years experience exceeded the O*Net Job Zone SVP for the position. The Board agreed with the CO that the Employer failed to provide an explanation as to why the requirement was excessive.

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

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 “Assistant Director."

The employer filed a LC on behalf of an alien worker in August of 2006, where the Employer indicated that it had based its recruitment on the requirements for a non-professional position. In November of 2008, the CO denied certification because the Employer improperly relied upon the non-professional position requirements for recruitment, when the professional position recruitment requirements should have been conducted. The CO explained that the particular position was listed in Appendix A of the Preamble to 20 C.F.R. Part 656 as a Professional occupation, and recruitment should have been conducted accordingly. The Employer then filed a Motion to Reconsider arguing that the CO’s allegation was made in error, that he did not file for a professional position, and that a bachelor’s degree was not required. The CO stated that when a position is listed on Appendix A, the Employer must conduct the recruitment required for professional occupations, the mere listing as a non-professional position, and not requiring a bachelor’s degree were irrelevant to the discussion. Since the additional recruitment steps were not taken, the CO had the authority to deny certification.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and filed a brief arguing the same positions as listed above. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the occupation was listed on Appendix A, and therefore recruitment in a manner prescribed for a professional position was required pursuant to the regulations.

Upon BALCA review, it was determined that professional recruitment requires a few additional steps not required for nonprofessional positions. Appendix A of the Preamble to 20 C.F.R. Part 656 provides an extensive list of professional occupations, which are defined as “occupations for which the attainment of a bachelor’s or higher degree is a usual educational requirement, however, the educational degree is not determinative of whether an Appendix A occupation is considered a professional position. Thus, if an occupation is found on Appendix A, the employer must recruit the position under the criteria for professional occupations, even if the
employer does not consider the position to be a professional one and does not require the attainment of a bachelor’s degree. Here, the Employer did not require a bachelor’s degree, but the position was listed in Appendix A, and the Employer was required to conduct the additional steps required for professional recruitment. In the present case, the Employer failed to conduct those additional steps and denial by the CO was proper.

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

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 “Accounting/Bookkeeping Assistant."

On March 2, 2007, the employer filed a LC on behalf of an alien worker, indicating that the position was a professional occupation. In August of 2007, the CO denied certification for many reasons, mainly that the application was incomplete. By September, the Employer had resubmitted the labor application correcting most of the deficiencies, and submitted evidence of recruitment. In November of 2008, the CO issued a letter of reconsideration providing that one of the reasons for denial was that the job order was not conducted within the time frame required by the regulations. Additionally, one of the three additional recruitment steps was conducted outside of the time frame.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the Job Order was not completed at least 30 days prior to filing the application, and the fact that one of the three additional recruitment steps was conducted 5 months after filing, clearly in violation of the regulations.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls and provides that “an employer must have attest to having conducted the following recruitment prior to filing the application: (1) …the employer must conduct recruitment steps within six (6) months of filing the application…,(2) a job order must be placed with the State Workforce Agency (SWA) serving the area of intended employment for a period of 30 days, the state and end dates of the job order entered on the application shall serve as documentation of this step… Here, the Employer placed the job order six (6) months after filing the application, which is a clear violation, because the job order must be filed at least thirty (30) days prior to filing the application. Additionally, the third additional recruiting step was not completed until five (5) months after filing, when it should have been completed within 30 days prior to filing.

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

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 “Food Preparation Worker."

The employer filed a LC and had checked the box on Form 9089 indicating that there was a Sunday edition of a newspaper available in the area of intended employment. The Employer’s report of its newspaper advertisements showed that the first ad was placed on Tuesday, August 22, 2006, and a second advertisement was placed on Saturday-Sunday, October 21-22, 2006, in a different newspaper. In January of 2007, the CO denied labor certification for failure to comply with the Sunday newspaper advertisement regulations. The Employer then submitted a letter indicating that it had re-advertised for the position on Sunday, January 28, 2007. Accordingly, the CO thereafter denied reconsideration on the ground that the 2007 newspaper advertisement was not “in the record” at the time the application was denied.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(e) controls, providing that the Employer must have attested to having placed two print advertisements on two different Sundays in the newspaper of general circulation in the area of intended employment most appropriate to the occupation and the workers likely to apply for the job opportunity. Here, the denial was based upon the Employer’s failure to run the second advertisement in a Sunday edition newspaper of general circulation. The Employer did not argue that it had or had not complied with the regulations, but argued that it re-advertised the position correctly after the denial, and that certification should be granted based upon that act. The Board stated that the CO is not required to permit an employer to cure a deficiency by filing a motion for reconsideration supported by a new recruitment conducted after the CO denied the application. The Employer’s remedy in this case is to file a new labor certification.

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

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 “Brickmason."

The employer filed a LC on behalf of an alien worker and in October of 2007, the CO issued an Audit Notification letter requesting among other documents, its recruitment documentation. The Employer complied with the request; however a newspaper advertisement failed to contain the Employer’s name. In May of 2008, the CO issued a letter denying certification. In June of 2008, the Employer filed a request for reconsideration providing that if anything the omission was harmless error, as they had received three resumes in response to the advertisement, and compared their case to the Board’s decision in HealthAmerica. The CO issued a letter of reconsideration but affirmed the denial for the deficiency in including the Employer’s name in the newspaper advertisement. The CO further provided that inclusion of the Employer’s name allows potential applicants to identify the employer and determine if they will apply, and that some applicants may be unwilling to blindly apply for a position in which they do not know the identity of the Employer.

The CO then forwarded the case to BALCA. The Employer filed a brief providing that applicants were not prevented from applying as the company received three resumes in response to the advertisement, and further relied upon HealthAmerica, providing that “one innocent omission should not be the basis for the entire application to crumble.” The CO filed a letter brief arguing that its decision should be affirmed by the Board, and that HealthAmerica was distinguishable from the present case because it involved a typographical error, not a clear failure to follow the regulations governing advertisements.

Upon BALCA review, regulation 20 C.F.R. § 656.17(f)(1) controls and provides that “advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must: (1) Name the employer and (2) Direct applicants to report or send resumes, as appropriate for the occupation, to the employer….” Here, the Employer’s newspaper advertisements failed to contain the Employer’s name, in violation of the regulation. The Board stated that the Employer’s argument that applicants were not prevented from applying because they received three resumes was not convincing. The Board reviewed and relied upon the reasoning of the CO, and also found HealthAmerica as distinguishable from the present case.

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

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 “Cook."

The employer filed a LC on behalf of an alien worker and in November of 2007, the CO issued an Audit Notification letter requesting among other documents; Notice of Filing, the recruitment report, the prevailing wage determination, and documentation of recruitment. The Employer’s attorney filed a response indicating that it had a prior approved labor certification for the same position with the exact same requirements, therefore the present application warranted an approval for certification, and if not, the CO needed to thoroughly explain why. In January of 2008, the CO issued a letter denying certification. In February of 2008, the Employer filed a request for review arguing that the CO’s determination was unfair and arbitrary. The CO issued a letter of reconsideration in February of 2009 and provided that the Employer failed to comply with the Audit therefore, the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer filed a brief on the same basis as its earlier argument (the prior approval of the earlier application for the same position, same requirements warranted an approval of the present application). The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 656.20(b) controls and provides that a “substantial failure by the
employer to provide required documentation will result in that application being denied
under § 656.24 ….” Here, the CO requested that the Employer provide certain documents in response to its audit notification letter. The Employer failed to provide the requested documents, and failed to give a reason for not providing the documents. The Board further provided that although similar applications have been certified in the past, it does not in any way excuse an employer from producing documentation in response to an Audit Notification.

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

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 “Beautician."

The employer filed a LC on behalf of an alien worker and in March of 2008, the CO issued an Audit Notification letter requesting among other documents, the recruitment report. The Employer complied with the request for other documents, but failed to submit the recruitment report. In May of 2008, the CO issued a letter denying certification. In October of 2008, the CO issued a letter of reconsideration in which it thoroughly reviewed the applicant’s file and still could not find the recruitment report. Accordingly, since the Employer failed to comply with the Audit (submission of the recruitment report), the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed with the appeal, and did not file a brief. The CO filed a letter brief arguing that its decision should be affirmed by the Board.

Upon BALCA review, regulation 20 C.F.R. § 656.17(g) controls and provides that, the employer is required to “prepare a recruitment report signed by the employer or the employer's representative noted … describing the recruitment steps undertaken and the results achieved, the number of hires, and, if applicable, the number of U.S. workers rejected, categorized by the lawful job related reasons for such rejections.” Further, when PERM application is selected for the audit procedure, failure to provide requested documents to the CO will result in the application being denied. Here, the CO specifically identified the requested documents, and the recruitment report was not submitted. Thereafter, the Employer had the ability to make an argument on appeal, but failed to do so. Without a report, the CO could not determine whether the recruitment procedures complied with the regulations.

Accordingly, the Board had to affirm the decision of the CO in denying labor certification.

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

The Foreign Credentialing Commission on Physical Therapy (FCCPT) issued a letter clarifying its educational equivalency for foreign educated Physical Therapists in February of 2009. Recently, there has been much confusion over the issue.

The FCCPT is the only entity authorized by the United States Citizenship and Immigration Service (USCIS) to issue such certificates, which verify that a foreign applicant has acquired an education substantially equivalent to the US standard in education of physical therapists.

In summary, the letter provides that when the FCCPT issues a Type 1 Comprehensive Credentials Review Certificate, it is asserting that the applicant has acquired at least a Master’s degree or higher in Physical Therapy, as required under the regulations.

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 “Cook."

The employer filed a LC on behalf of an alien worker in February of 2006. In November of 2007, the CO denied certification under 20 C.F.R. § 656.3 because he was unable to verify the Employer as a bona fide entity. The CO did not explicitly request proof of the employer’s Federal Employer Identification Number (FEIN). In response to the denial, the Employer submitted a copy of a prior approved labor certification arguing that it was for the same employer, same address, same telephone number, and same FEIN. The Employer also submitted a Yellow Pages advertisement for the company, and the company’s business license in a request to the CO for reconsideration. Thereafter, in March of 2009, the CO issued a letter of reconsideration providing that the application would be denied because the applying company could not be verified as a bona fide entity under the regulations. Specifically, the CO stated that the other application contained a FEIN different from the application presently under review; therefore it did not serve as verification of a bona fide entity. Accordingly, since the Employer failed to provide proof of a valid FEIN, the denial was appropriate.

The CO then forwarded the case to BALCA. The Employer submitted an appellate brief arguing that at no time did the CO clarify that he wanted proof of a valid FEIN, and furthermore, never requested such proof. The CO filed a letter brief arguing that its decision should be affirmed by the Board because the Employer did not provide a valid FEIN as required under the regulations.

Upon BALCA review, regulation 20 C.F.R. § 656.3 controls, it provides that to be considered an “Employer” for the permanent labor certification program, an entity must possess a valid FEIN. The Board agreed with the CO that the two application’s FEIN’s did not match, but determined that the Employer’s argument regarding the absence of a request for the FEIN had some merit. The Board determined that the CO’s denial did not address the issue sufficiently to provide the Employer an opportunity to appropriately address the situation. The Board concluded that fundamental fairness was required, and ordered the CO to allow the Employer to clear up the inconsistency in its FEINs submitted.

Accordingly, the CO’s denial was vacated for further proceedings consistent with the Board’s decision.

Effective July 1, 2009, all users of the Old LCA system must begin using the new iCert system located on the U.S. Department of Labor Employment & Training Administration website to file LCAs.

The United States Citizenship and Immigration Service (USCIS) has announced that effective June 29, 2009, it will resume the premium processing service for Form I-140, Immigrant Petition for Alien Worker.

The following categories are eligible for premium processing:
EB-1 Aliens with Extraordinary Ability
EB-1 Outstanding Professors and Researchers
EB-2 Member of Professions with Advanced Degrees or Exceptional Ability (not seeking National Interest Waiver)
EB-3 Professionals
EB-3 Skilled Workers
EB-3 Workers other than Skilled Workers or Professionals

By paying the required $1,000 for Premium Processing, petitioners will receive one of the following from the USCIS: an approval, a notice of intent to deny, a request for evidence, or a notice of the intent to investigate, within 15 calendar days of receipt.

If you have any questions, please contact our office.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on June 15, 2009 with processing dates as of April 30, 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.

On Thursday, June 11, 2009, Senators Robert Menendez, Kirsten Gillibrand and Patrick Leahy introduced the Orphans, Widows and Widowers Protection Act (S. 1427). This legislation would provide essential immigration protections for those impacted by the death of a sponsoring relative. The legislation imposes specific requirements that must be followed for each type of immigration filing – including naturalization, family based immigration and derivative beneficiaries of employment based immigration.

The United States Citizenship and Immigration Service (USCIS) has announced that they are experiencing delays in the production of permanent residence cards.The Service is in the process of updating its card production equipment. As of May 29, 2009, the Service announced that recipients may experience up to an eight (8) week delay before receiving their permanent residence card.

While waiting for delivery of the permanent residence card, approved recipients will be given temporary evidence of permanent residence at the time of their interview. Therefore, applicants will need to take their passports to their interview, so that the USCIS may place an I-551 stamp within the passport. This stamp will serve as temporary evidence of permanent residence until the recipient receives the actual permanent residence card. If approved applicants do not have a passport, they are required to bring a passport style photo and government issued photo identification to the interview to receive the stamp.

For applicants whose application is approved after the interview, they must schedule an INFOPASS appointment and bring the requested documents above to that appointment to obtain the I-551 stamp.

If you have any questions regarding this matter, please contact the MVP Law Group.

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.

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.

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.

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

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.

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
.

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.

Continue reading "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 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.

Continue reading "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 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.

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.

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.

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.

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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.

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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.

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.

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.

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.

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.

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.

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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.

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.

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" »

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.

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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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.

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.

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

The employer, a plumbing services company filed a LC on behalf of an alien worker in April of 2001. The application got caught up in the large number of pre-PERM backlog cases, and as a result the employer did not receive the Recruitment Instructions letter until February of 2007. The letter directed the employer to advertise the offered position in a newspaper of general circulation. The Employer placed an ad in the Houston Northwest Greensheet for the requisite period of time, and also placed an advertisement for the position online. In August of 2007, the director issued a Notice of Findings (NOF) to the employer indicating that the employer must submit proof of advertisement or the application would be denied. In September, the employer submitted a notarized proof receipt indicating that the employer had run the advertisement in the Greensheet. Thereafter, the CO issued its final determination denying certification because the Greensheet did not meet the definition of a newspaper of general circulation. Subsequently, the employer requested BALCA review. The employer indicated in its request that (1) it has used the Greensheet before for advertising purposes and forms were never returned or questioned, and (2) it asked to be permitted to re-advertise if the Greensheet was determined inadequate.

Upon BALCA review, it was determined that the employer was denied an adequate opportunity to timely submit evidence on the issue of whether the Greensheet was a newspaper of general circulation. The employer was not informed of the inadequacy of the newspaper until the director’s final determination. Accordingly, it is the certifying officer’s duty to state the specifics upon which the decision to issue the NOF was made. If the reasons for the denial are not made clear, it cannot rebut with sufficiency nor can it attempt to cure any deficiency. Upon review of the NOF, BALCA determined that it only suggested that the employer submit proof of advertisement to rebut. The CO made it clear in its final determination letter that the newspaper did not meet the regulation requirements, but by that time, it was too late for the employer to submit evidence to rebut the conclusion. Thus, BALCA determined that the NOF was rebutted, and therefore certification should be granted. Accordingly, the final determination of the CO was reversed and the labor certification thereafter granted.

The Administrative Appeals Office (AAO) recently considered the merits of the petitioner’s appeal on a de novo basis. Accordingly, the appeal was rejected, subsequent motions were rejected and the petition will remain denied.

There were several procedural errors made in the adjudication of this petition. The employment based immigrant visa petition was denied by the Director of the Vermont Service Center (VSC) on August 3, 2004. The petitioner filed a subsequent appeal on September 8, 2004. The director declined to treat the late appeal as a motion and forwarded the matter to the AAO. On October 11, 2005, the AAO rejected the appeal as untimely without rendering a decision as to the merits of the case. On November 9, 2005, the petitioner filed a motion to reopen the AAO’s rejection of his appeal. On June 6, 2006, the director dismissed the motion rather than forwarding it to the AAO for consideration. On December 12, 2007, the petitioner filed a motion to report the director’s decision dismissing his prior motion. The director forwarded the motion to the AAO. Although the issuing director shall have jurisdiction over the motion, given the directors errors throughout the proceedings, the AAO decided that they would consider the merits of the case on a de novo basis.

The issue on appeal is whether the petitioner properly filed the appeal. In order to properly file an appeal, the regulations provide that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. According to the facts, the appeal was untimely filed. Although the appeal was untimely, it did meet the requirements of a motion to reopen. The regulations specifically provide that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. Thereafter, the AAO considered the case themselves due to the prior errors committed in this proceeding.

The Petitioner filed an employment based immigrant visa petition on behalf of an alien with extraordinary ability, a Chinese Opera artist. To be eligible to qualify for the visa, the regulation provides that an alien have extraordinary ability in the sciences, arts, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. The term “extraordinary ability” means a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor. The regulation at 8 C.F.R. § 204.5(h)(3) indicates that an alien can establish sustained national or international acclaim through evidence of a one-time achievement (that is, a major, internally recognized award). Barring the alien’s receipt of such an award, the regulation outlines ten criteria, at least three of which must be satisfied for an alien to establish the sustained acclaim necessary to qualify as an alien of extraordinary ability. The AAO provided that in determining whether the petitioner meets a specific criterion, the evidence itself must be evaluated in terms of whether it is indicative of or consistent with sustained national or international acclaim.

Upon review of the petition, the AAO considered the evidence submitted by the petitioner for nine of the ten criteria. After a thorough review of each piece of evidence, the AAO ultimately denied the appeal. There were various problems with this petition. All documents that were submitted for review along with their English translations were insufficient. The translated English documents were not certified as required by the regulations, and as such the AAO could not afford the documents any weight in its evaluation of the evidence. Additionally, other evidence tended to show that the alien performed locally rather than nationally or internationally, and that many competitions he entered were restricted to the youth. In addition, the published material submitted about the alien was not sufficient as the materials were not specifically about the alien, and there was no evidence presented that the publications constituted major media. The petitioner also submitted several letters of recommendation regarding his talent and expertise in the field. The AAO responded to the letters by stating that talent in one’s field is not necessarily indicative of artistic contributions of major significance, and that although the alien earned the admiration of those providing letters, there was nothing to demonstrate that his work has had major significance in the field at large.

In conclusion, the petitioner failed to demonstrate receipt of a major, internationally recognized award, or that he meet at least three of the regulatory criteria. The burden of proof rested with the petitioner, and the petitioner was unable to sustain that burden. Accordingly, the AAO stated that even if the petitioner’s appeal and subsequent motions were not rejected, the petition would have remained denied.

The Department of Labor will soon implement a new integrated online system – known as the iCert Portal – through which employers will submit applications for permanent labor certification, labor condition applications (LCAs) and other applications for immigration-related DOL programs. In addition, the agency will introduce new editions of Form ETA-9089, the PERM labor certification application, and Form ETA-9035, the labor condition application. When fully implemented, the new system will replace the existing LCA and labor certification application systems. DOL will implement the new LCA and PERM application systems with 30-day transitional periods, when both the existing system and the new online portal will be operational simultaneously.

The new iCert system will begin to accept LCAs as of April 15, 2009 – after the April 1 opening date of the H-1B filing period for employment in Fiscal Year 2010. The system will begin to accept PERM applications beginning July 1, 2009.

Continue reading "Labor Department To Implement New Online Application System" »

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

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

The Board of Alien Labor Certification Appeals (BALCA) recently vacated the final determination of a Certifying Office (CO) denying labor certification for an alien worker for the position of “Reverend,” and remanded the case for further proceedings.

In the aforementioned case, the employer filed an application for labor certification on behalf of a foreign alien to fill the position of Reverend. The CO notified the employer that it needed to provide the prevailing wage for the position or its equivalent. In response to the notification, the employer stated a rate of pay of $8.00 per hour. Thereafter, the CO sent the Employer a document entitled “Recruitment Instructions.” The instructions informed the employer that the prevailing wage was $11.79 for the job and that the employer should advertise the job at that particular rate of pay to obey regulations. Subsequently, the employer placed newspaper advertisements illustrating that the rate of pay was $8.00 per hour. When the recruitment report was submitted to the CO, there was no explanation to indicate why the employer had used the $8.00 rate of pay. The CO issued a Notice of Findings (NOF) proposing to deny certification because the $11.79 prevailing wage had not been used in the Employer’s advertisement. The CO further explained to the employer that to rebut the NOF, it must provide a copy of an advertisement and an internal posting placed during the recruitment period, and the advertisement must reflect the prevailing wage provided in the Recruitment Instructions letter. In response, the employer re-submitted its earlier advertisement and did not further discuss the reason for using the $8.00 rate of pay. The CO issued a final determination denying certification because the advertisement had stated a wage of $8.00 per hour. The employer requested BALCA review arguing that it complied with the CO’s instructions for advertising; however, it never mentioned nor explained the reason for running advertisements with the $8.00 wage rate rather than the $11.79 prevailing wage.

Upon BALCA review, the regulation at 20 C.F.R. § 656.20 (c)(2) provides guidance and requires that an employer offer a wage that equals or exceeds the prevailing wage. According to case law, where an employer is notified that its wage offer is below the prevailing wage, but fails to either raise the wage to the prevailing wage or justify the lower wage it is offering, certification is properly denied. An employer seeking to challenge the prevailing wage bears the burden of establishing both that the CO’s determination is in error and that the employer’s wage offer is at or above the correct prevailing wage. It is the responsibility of the CO to provide the employer with adequate notice of its burden on rebuttal. Upon further review, BALCA determined that the employer, who was pro se – was not given adequate notice of its burden. Specifically, the CO had informed the employer of the option to use a lower wage if it could document that the lower wage was appropriate; however, the NOF only gave the employer the option to produce an advertisement establishing that the $11.79 rate was issued. It did not give the employer the option of rebutting by documenting that a lower wage was appropriate. This failure to correctly state the Employer’s burden of proof necessitates a remand for issuance of a new NOF. The new NOF will provide the employer with an option to establish through documentation that its wage offer was appropriate for the proffered position. Accordingly, BALCA vacated the final determination of the CO in denying certification and remanded the case for further proceedings.

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

In the aforementioned case, the Labor Certification (LC) was filed by the employer, a private household, on behalf of an alien worker in April 2001. In January 2007, a Notice of Findings (NOF) letter was issued by the CO requesting additional evidence for proof that a bona fide job opportunity actually existed at the residence and documentation that the employer had the ability to pay the actual wages offered. In response to the NOF letter, the employer submitted a copy of a utility bill showing a residential address for the employer, and thus did not provide any other documentation. The CO issued a final determination in August 2007 denying the LC. The CO concluded that the utility bill verified the employer’s residential address, but found that the response to the NOF was deficient because it did not address the ability of the employer to pay the Alien’s salary. Thereafter, the employer’s attorney requested BALCA review and attached his own letter to the request. The attorney suggested that the CO failed to take into consideration that the LC was for a domestic position in a private home, and thus all the boilerplate language in the NOF did not apply in the particular situation. The employer’s attorney requested that denial be reversed and that labor certification be granted.

Upon BALCA review, the board relied on 20 C.F.R § 656.20(c)(1) which specifically states that an application for labor certification must clearly show that an employer has sufficient funds available to pay the salary of the alien worker. This requirement is the same whether the position is in a private home or within a Fortune 500 company. Additionally, a CO may make reasonable requests of the employer to provide evidence of such, and failure to comply with those requests alone constitutes grounds for denial of certification. BALCA reviewed the NOF letter finding that it expressly stated that if the employee is to be employed in a private home, the employer should provide its most recent household Federal income tax return along with a utility bill in its name. BALCA further stated that it may have been reasonable for the employer not to submit some of the documentation requested in the NOF which was not applicable to a private home; however, to ignore the request entirely was unreasonable. Accordingly, BALCA affirmed the final determination of the CO denying the labor certification because the employer failed to produce documentation that would evidence its ability to pay the Alien’s salary.

The MVP Law Group, P.A. strongly encourages its clients and others to fully comply with all NOF requests issued by COs of the Department of Labor (DOL). Specifically, if the documentation requested in an NOF does not apply to your situation indicate why it does not apply on a separate sheet of paper. It is not wise nor recommended that you ignore requests for additional documentation from the DOL as failure to respond constitutes grounds for denial of certification in itself.

On August 15, 2008, the United States Court of Appeals for the Ninth Circuit issued an opinion finding that a no-match letter does not provide Constructive knowledge of Immigration Violations.

The case arose from the response by Aramark Facility Services (“Aramark”) to a no-match letter from the Social Security Administration (“SSA”), which indicated that Aramark had reported information for 48 of its employees that did not match the SSA’s database. Aramark suspected immigration violations and demanded that the suspected employees correct the mismatch within three days by proving that they had begun the process for applying for a new card. Approximately a week later, Aramark fired 33 of the 48 employees. The Service Employees International Union (“SEIU”) filed a grievance on behalf of the fired workers, contending that the terminations where without just cause and in violation of the collective bargaining agreement between Aramark and SEIU. An arbitrator ruled for SEIU and awarded the terminated employees reinstatement and back-pay, finding that there was no convincing information that the workers were undocumented. Thereafter, the District Court vacated the award on the ground that it violated public policy, and SEIU timely appealed.

In the aforementioned case, the main public policy to which Aramark points is expressed in the Immigration Reform and Control Act of 1986 (“IRCA”). Specifically, Aramark cites the laws that (1) employers are subject to civil and criminal liability if they employ undocumented workers “knowing” of their undocumented status, and (2) the term “knowing” includes constructive knowledge. As defined in relevant regulations, “constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Aramark argued that two facts gave it constructive notice of immigration violations: (1) the no-match letters themselves, and (2) the employees responses (or lack thereof).

According to the SSA, the main purpose of the no-match letters is not immigration-related, but rather is simply to indicate to workers that their earnings are not being properly credited. Additionally, SSN mismatches could generate a no-match letter for many reasons, including typographical errors, name changes, compound last names, and inaccurate or incomplete employer records. An SSN discrepancy does not automatically mean that an employee is undocumented or lacks proper work authorization. In fact, the SSA tells employers that the information it provides them “does not make any statement about…immigration status” and “is not a basis, in and of itself, to take any adverse action against the employee.” Employers do not face any penalty for ignoring a no-match letter.

Aramark also contends that it gave its employees ample time to respond to the no-match letter; however, the District Court found otherwise. Aramark’s return policy was extremely demanding in that an employee had three days to respond from the post-mark of the letter. Essentially, this gave the employees two days in order to gather documentation, possibly consult an attorney, and proceed to an SSA office during business hours, all while still continuing to work for Aramark.

In conclusion, Aramark had produced no evidence concerning the fired employees’ actual employment status other than that they were named in the no-match letters and did not quickly respond to the request for further verification of their social security status. This evidence does not illustrate that any of the workers were actually unauthorized to work, because a social security card is only ONE way to prove work authorization. Therefore, Aramark did not possess constructive knowledge/notice of immigration violations, and the SEIC on behalf of the fired employees shall be entitled to the arbitration award, as it is not against public policy when no evidence of immigration violations were found. Employers must look at the totality of the circumstances to determine whether they have constructive knowledge of suspected immigration violations.

The Administrative Appeals Office (AAO) recently dismissed an appeal brought by a U.S. petitioner, a convenience store. The issue of the appeal was whether or not the petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtained lawful permanent residence. The petitioner sought to employ the beneficiary permanently as a Manager. The ETA 750 was accepted on March 28, 2001, and the proffered wage was $18.00 per hour ($37,440.00 per year). In order to prove the ability to pay, the USCIS requires that a petitioner demonstrate financial resources sufficient to pay the beneficiary’s proffered wages from the time the labor application is accepted until the beneficiary attains permanent resident status. According to regulations, evidence of this ability shall be in the form of copies of annual reports, federal tax returns, or audited financial statements.

In determining whether the employer has the ability to pay, the USCIS will first examine whether the petitioner employed and paid the beneficiary during that period. If the petitioner can show that it employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the petitioner’s ability to pay the proffered wage. However, if the petitioner does not establish that it employed and paid the beneficiary, the USCIS will then examine the net income figure reflected on the petitioner’s federal income tax return. Net income results after subtracting costs and expenses from total revenue.

In the aforementioned case, at the time the labor was submitted, the beneficiary was not employed by the petitioner. Accordingly, the USCIS chose to review the petitioner’s net income figures. As a result, the petitioner’s federal income tax returns were insufficient to pay the beneficiary the proffered wage, therefore, the USCIS elected to review the petitioner’s net current assets. Net current assets are the difference between the petitioner’s current assets and current liabilities. To clarify, net current assets are assets that are continually turned over in the course of a business during normal business activity; they are in other words, the petitioner’s working capital. After thorough review, it was determined that the petitioner had insufficient funds to pay the beneficiary the proffered wage.

Counsel for the petitioner argued that by combining the petitioner’s net income with its net current assets, the petitioner had the ability to pay the proffered wage. However, the AAO did not accept that approach. The AAO’s view was that net income and net current assets are two different methods of establishing the ability to pay, and they cannot be combined to satisfy the ability to pay, its either one or the other. Accordingly, the petitioner had not met its burden, and the appeal was dismissed.

According to U.S. Citizenship & Immigration Services (USCIS), an additional seventeen (17) month Optional Practical Training (“OPT”) extension is available for current OPT F-1 students who have completed a science, technology, engineering, or mathematics degree and accepted employment with an employer enrolled in the E-verify program. Additionally, this extension will benefit students with pending H-1B petitions and change of status requests, as it will enable them to maintain their employment eligibility for the duration of the H-1B processing period. Without this benefit, foreign students on F-1 nonimmigrant status would only be eligible for the normal twelve (12) months of OPT to work for a U.S. employer in a field directly related to their major area of study. This employment eligibility program essentially provides a benefit for students on F-1 status who seek employment with an employer enrolled in E-Verify.

E-Verify Requirement for Federal Contractors

On June 9, 2008, Executive Order 12989 was issued, which declared E-Verify, the electronic employment eligibility verification system that all federal contractors must use. The Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use E-Verify to verify the employment eligibility of all persons hired during the contract term, and all persons performing work within the United States on the federal contract. This rule is not final, and is open for public comment at this time. Please refer to the following link for contact information, if you would like to submit a written comment. Written comments must be submitted on or before August 12, 2008.

The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

For instance, if you are the beneficiary of an employment-based third preference I-140 petition, as a citizen of India, with a priority date of March 1, 2005, your child would automatically have the same priority date. At the time of filing, your child was 16 years old. Once again you would have to review the State Department’s monthly Visa Bulletin to determine whether or not your priority date is current. Currently, there is a backlog for the employment-based third preference category for citizens of India. Accordingly, applicants currently have a wait of approximately seven (7) years before a visa number will become available. The State Department is currently processing cases for applicants with a priority date of November 1, 2001. Therefore, by the time the visa number will be available, your child will be 23 years old. Then, you must subtract from that age, the result of a second formula.

The second formula requires you must determine the elapsed time between the date the petition was filed, and the date that the petition was approved.

Accordingly, the I-140 petition was filed on March 1, 2005, and then approved on March 27, 2006. The computation of those two dates would be a period of approximately 1 year. This only brings your child’s age down to 22. (23 years of age – 1year = 22) Therefore, your child has “aged-out” even with the help of the CSPA. Retrogression of employment-based visa numbers has severely limited the ability of the CSPA to help the derivative children of employment-based petitions.

If the facts were different, and your child did not “age-out”, he/she would still have to apply for permanent residence within one year of the priority date being current in order to be protected under the CSPA. Otherwise, the child would “age-out” and subsequently be denied.

The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

The new guidance allows aliens who had an approved immigrant visa petition prior to the enactment of the CSPA, but had not yet applied for permanent residence on the date of enactment to benefit from the CSPA. The new guidance includes many aliens who, subsequent to the enactment of the CSPA, never filed an application for permanent residence and aliens who filed an application for permanent residence but such application was denied solely based on the applicant’s age.

The Act provides that if you are a U.S. citizen and you file a Petition for Alien Relative (Form I-130) on behalf of your child before he or she turns 21, your child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before your child turns 21. The child will not ‘age out.’ The child will be eligible for permanent residence as an immediate relative, provided that no final decision was reached prior to August 6, 2002 on an application for permanent residence in which the applicant claimed to be a child.

It is the employer’s responsibility to maintain an audit file for every PERM application they file on behalf of their employees. As a practical matter, it is important to keep accurate and up-to-date records of all employee supporting documentation, especially when dealing with the PERM process. It is important that all steps in the process are followed precisely. Otherwise, consequences may occur that could ultimately result in supervised recruitment for two years, employer disbarment from the PERM system for two years, or even the closing of the employer’s business. Therefore, by maintaining an audit file for every PERM applicant, the employer is prepared to respond to an audit notice in a timely and efficient manner, and has the evidence to establish that they followed the required procedures correctly.

The key elements of an employer’s audit file should include the following:

1. A copy of the certified labor certification application (ETA FORM 9089)
An employer is required to maintain a copy of the certified application

2. Proof of permanent, full-time employment
An employer must be prepared to document the permanent and full-time nature of the position by furnishing job descriptions and payroll records for the job opportunity involved in the 9089 application- If the job does not exist, the employer must be prepared to show that a change in its business caused the job to be created

3. Notice to the bargaining representative (if applicable)
A copy of the letter and a copy of the 9089 Application form that was sent to the bargaining representative will suffice

4. Documentation of job posting notice
A copy of the posted notice and statement regarding where it was posted, and copies of all the in-house media that were used to distribute notice will be sufficient

5. Proof of job order placement
A copy of the State job order print document will be adequate

6. Documentation regarding bona fide job opportunity (if applicable)
Applies if the employer is a closely held corporation or partnership or if there is a familial relationship between management and the alien, or if the alien is one of a small number of employees

If applicable, documentation consisting of the Articles of Incorporation, partnership agreements, licenses, an organizational chart documenting all positions and relations between workers, the total investment of each individual, and the name of the human resources representative should all be kept within the file

7. Prevailing wage documentation
The State Workforce Agency (‘SWA’) prevailing wage determination printout will suffice; however, if the employer used an alternative wage source to obtain a prevailing wage determination, the employer should retain copies within the file

8. Recruitment documentation consisting of: (three different mediums must be utilized in addition to the two required print ads)
• Print Ads
- copies of the newspaper pages in which the advertisements appeared will suffice
- if a professional journal was utilized, a copy of the page in which the advertisement appeared will be adequate

• Job Fairs
- a copy of a brochure advertising the fair and/or newspaper advertisements in which the employer is named as a participant in the job fair will be sufficient

• Employer’s Web site
- a dated copy of the page from the website that advertises the occupation involved will suffice

• Job Search Web site (other than employer’s)
- a dated copy of the page(s) from one or more website(s) that advertise the occupation involved will be adequate

• On-Campus recruiting
- copies of the notification issued or posted by the university’s placement office naming the employer and the date it conducted interviews for employment in the occupation will be sufficient

• Trade or professional organization journals/newspapers
- copies of pages of newsletters or trade journals containing advertisements for the occupation involved will suffice

• Private employment firms
- copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved will be adequate

• Employee referral program with incentives
- dated copies of employer notices or memoranda advertising the program and specifying the incentives offered will be sufficient

• Campus placement offices
- a copy of the employer’s notice of the job opportunity provided to the campus placement office will suffice

• Ads in local and ethnic newspapers
- copies of the newspaper pages in which the advertisements appeared will suffice

• Radio and Television advertisements
- a copy of the text of the employer’s advertisement along with a written confirmation from the radio/television station stating when the advertisement was aired

Continue reading "Maintaining PERM AUDIT Files" »

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

Click here to view the USCIS Update on I-140 Premium Processing.