H1B Visa Lawyer Blog

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

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

Our next “Q & A Forum” will take place this Friday, February 3rd, 2012. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – General
If I do not speak English, when I go to my interview for my visa, will a translator be provided for me or will I need to provide one myself?

Answer #1
It depends upon the type of visa you are applying for and from where you are applying for the visa. Most Consulates have counters were different languages are spoken. If you are applying in the U.S., when you go to your visa interview, you will need to provide a translator for yourself. This translator should not be an interested party in your case.

Question #2 – Consular Processing
What is the purpose of consular processing?

Answer #2
Consular Processing allows applicants who have been approved for an Immigrant Visa, with an Immigrant Visa immediately available - the ability to apply at the U.S. Department of State Consulate abroad in order to come to the United States and be admitted as a Permanent Resident.

Question #3 – Consular Processing vs. AOS
What is the difference between consular processing of immigrant visa and adjustment of status?

Answer #3
Adjustment of Status is an alternate process by which an individual who has been approved for an Immigrant visa with an Immigrant visa immediately available,the ability to apply from within the United States to adjust status to that of a Permanent Resident without returning to their home country to process paperwork.

Question #4 – Temporary Work Visa
If I plan to continue working for my employer in the United States, at what point should I apply for an extension?

Answer #4
It depends upon which type of nonimmigrant visa you are utilizing. For the H-1B (Specialty Occupation) nonimmigrant visa, you are able to apply for an extension at least 6 months prior to the visa’s expiration date.

Question #5 – Premium Processing
How does premium processing for the H-1B visa work?

Answer #5
Premium Processing is an option that allows a case to be adjudicated within a period of 15 calendar days from the date the USCIS receipted the case. For an additional USCIS filing fee of $1225.00, the USCIS will review the case and make a decision within the specified time period. If an RFE is issued, once the response is received by the USCIS, the clock begins to run again for 15 calendar days. Regular processing is currently taking 2-3 months from the date of filing to be adjudicated by the USCIS.

Question #6 – General
Is it necessary that I have someone sponsoring me when I apply for a visa?

Answer #6
It depends, as almost all types of visas require sponsorship whether employment based or family based.

Question #7 – Visitor Visa v. Temporary Work Visa
Are a B-1 and an H-1B visa interchangeable as far as my ability to work in the United States?

Answer #7
NO. A B-1 visa is reserved for Business visitors who are not allowed to be gainfully employed in the United States. B1 visa holders are limited in the actions that they may partake in while in the U.S. as a business visitor. In order for them to be able to work (gainful employment) while in the U.S. a work visa is required. An H-1B nonimmigrant visa is a work visa reserved for specialty occupation foreign workers.

Question #8 – General
My sister is filling up the form DS 160 for H1b through her multinational company in India. What should she mention in the question, “Do u have a relative in USA”? I was on J1 visa for 3 years and got F1 approved while in USA only. But unfortunately, I lost my F1 visa due to Tri Valley University, but I am still enrolled as full time student in a school in USA and the F1 reinstatement application is still pending with USCIS. Will she face further questions on my visa details or terminated SEVIS during visa interview? Can it jeopardize her prospects of getting visa?

Answer #8
Your sister should be truthful in the completion of her DS-160 application. Your status should not affect her status. This ultimately is an application and an interview regarding her potential employment and should not concern you. It is not her business to know all of the details of your visa status. The questioning from the visa officer should be centered on her, not her family or your status. Your visa status/circumstances should not jeopardize her attainment of an H1B nonimmigrant visa.

Question #9 – Green Card
My EB-3 priority date is October 18, 2006 and I have a pending I-485 application filed back in July 2007 when all categories were current. My fiancé and I are getting married in February 2012. Since my I-485 is not approved yet, I heard that it is possible to include him in my green card application so that both of us can get our green cards when my priority date is current. Is that true? If so, when and how should I start the process?

Answer #9
You will need to wait for your priority date to become current before you are able to file your spouses’ I-485, Adjustment of Status application.

Question #10 – Schedule A Green Card
Hi! I would like to ask regarding the schedule A visa for Registered Nurse. I am a Filipino citizen, residing at spring, Texas, USA. My visa is H1-B as medical Technologist and i just came last November 2011.I have SSN already. I am a registered Nurse also in the US with CGFNS visa screen certificate and NCLEX passer, licensed in the states of California and Texas.. My employer just mentioned to me about the green card application for Registered nurses. Is it possible for my case to apply for the said green card application? Thank you.

Answer #10
Based on the information you have supplied, you seem to be eligible as a Registered Nurse to obtain permanent residency through the Schedule A Green Card category.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, February 3, 2012!
Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

Our next “Q & A Forum” will take place this Friday, January 20th, 2012. Act now and submit your questions!

THANK YOU!

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

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

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

Our next “Q & A Forum” will take place this Friday, January 6th, 2012. Act now and submit your questions!

THANK YOU!

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

The following immigration-related bills were introduced into the House of Representatives and the Senate in October - December 2011 and summarized below by AILA (American Immigration Lawyers Association):

Senate Bills

S. 1856
Introduced by Sen. DeMint (R-SC) on 11/10/11
Prohibits federal funding for lawsuits seeking to invalidate specific State laws that support the enforcement of federal immigration laws.

Families First Immigration Enforcement Act (S. 1949)
Introduced by Sen. Kerry (D-MA) on 12/07/11
Provides for safe and humane policies and procedures pertaining to the arrest, detention, and processing of aliens in immigration enforcement operations.

Science, Technology, Engineering, and Mathematics– STEM Visa Act of 2011 (S. 1986)
Introduced by Sen. Bennet (D-CO) on 12/13/11
Amends INA to promote innovation, investment and research in the United States.

Irish Recognition and Encouragement Act of 2011- IRE Act (S. 2005)
Introduced by Sen. Brown (R-MA) on 12/15/11
Authorizes the Secretary of State to issue up to 10,500 E-3 visas per year to Irish nationals.

House Bills

H-2A Improvement Act (H.R. 3232)
Introduced by Rep. Owens (D-NY) on 10/14/11
Includes within the H-2A nonimmigrant category an alien coming temporarily to the United States to work as a sheepherder, goat herder, or dairy worker. The bill also exempts an employer filing a petition to employ such a worker from the requirement to show that the position is of a seasonal or temporary nature.

Deport Convicted Foreign Criminals Act of 2011 (H.R. 3256)
Introduced by Rep. Poe (R-TX) on 10/25/11
Directs the Secretary of Homeland Security to report quarterly to Congress regarding each country that has refused or unreasonably delayed repatriation of an alien. The bill also prohibits the Secretary of State, upon the passage of specified periods of time, from issuing certain nonimmigrant (including certain diplomatic) visas and immigrant visas to a citizen, subject, national, or resident of a listed country.

Haitian Emergency Life Protection Act of 2011- H.E.L.P. Act (H.R. 3297)
Introduced by Rep. Clarke (D-NY) on 11/01/11
Amends the INA with respect to V visa (spouses/children of LPR who come to the United States to wait for completion of immigrant visa process) nonimmigrants to include certain Haitian nationals whose petition for a family-sponsored immigrant visa was approved on or before January 12, 2010.

Foster Children Opportunity Act (H.R. 3333)
Introduced by Rep. Stark (D-CA) on 11/03/11
Requires state plans for foster care and adoption assistance to have procedures to assist alien children in the child welfare system achieve special immigrant juvenile status and LPR status before exiting foster care.

Visa Improvements to Stimulate International Tourism to the United States of America- VISIT USA (H.R. 3341)
Introduced by Rep. Hirono (D-HI) on 11/03/11
Provides qualifying nationals of China (PRC) with a five-year multiple entry/exit visitor visa. The bill also requires such persons to be screened through the automated electronic travel authorization system.

Enhanced Border Security Act (H.R. 3401)
Introduced by Rep. Mack (R-FL) on 11/10/11
Directs the Secretary of State to submit to Congress a counterinsurgency strategy to combat the operations of transnational criminal organizations in Mexico.

American Growth, Recovery, Empowerment, and Entrepreneurship Act- AGREE Act (H.R. 3476)
Introduced by Rep. Hanna (R-NY) on 11/18/11
Amends Internal Revenue Code to extend certain tax expenditure provisions for business taxpayers. Also, amends INA to eliminate the per country cap for employment-based immigrants and increase the per country cap for family-based immigrants to 15% of the total number.

Religious Worker Visa Reciprocity Act of 2011 (H.R. 3557)
Introduced by Rep. King on 12/02/11
Requires the country of origin of certain special immigrant religious workers to extend reciprocal immigration treatment to United States nationals.

Immigration and Naturalization Investment Ventures for Engineering, Science, and Technology- INVEST in America Act (H.R. 3692)
Introduced by Rep. Schiff (D-CA) on 12/15/11
Establishes an entrepreneur-based immigrant category for alien entrepreneurs who have completed or are in the process of completing a degree in Science, Engineering, Math or a technology-related field.

Save Our Small and Seasonal Businesses Act of 2011 (H.R. 3718)
Introduced by Rep. Keating (D-MA) on 12/16/11
Prioritizes certain returning workers for purposes of the numerical limitation on H-2B temporary workers.

New Illegal Deduction Elimination Act- New IDEA Act (H.R. 3720)
Introduced by Rep. King (R-IA) on 12/16/11
Amends the Internal Revenue Code of 1986 to clarify that wages paid to unauthorized aliens may not be deducted from gross income.

H.R. 3761
Introduced by Rep. Thompson (D-CA) on 12/20/11
Amends the INA to protect the well-being of soldiers and their families

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

Question #1 – H-1B Nonimmigrant Work Visa
After the I-129 was received by uscis for review from the DOS, it was on the post decision stage. now the uscis sent me an email that they mailed a duplicate copy of their decision on the case or the instructions to follow if it is still pending. My case is now on acceptance stage. why is my case back to acceptance stage?

Answer #1
When a case is returned by the DOS to the USCIS, the USCIS is afforded the opportunity to review the case and determine whether to uphold their original decision (approval) or to revoke the approved filing. If they decide to revoke the petition, the USCIS will issue to the Petitioner or Authorized Representative a Notice of Intent to Revoke outlining the reasons for revocation. It is the burden of the Petitioner or Authorized Representation to present evidence to overcome the allegations/reasons for revocation. Since the USCIS is reviewing the case, this could explain why the case status indicates ‘Acceptance Stage.’

Question #2 – H-1B Nonimmigrant Work Visa
How long does it typically take for the USCIS to review an H1 case that has been returned by the Department of State? When can we contact USCIS?

Answer #2
The USCIS has indicated that when cases are returned to them from the DOS, those cases are reviewed and processed when time and resources allow. Pursuant to the USCIS National Customer Service Center (1-800-375-5283), you may initiate a Service Request after waiting 180 days from the date your case is returned to the USCIS.

Question #3 – Travel
I am planning on traveling out of US for short trip. I heard from friends that I may not be able to obtain a new visa stamp for my recently approved I-129 and come back.

Answer #3
If you MUST travel on H-1B status, we recommend that you have the following: at least two months’ worth of pay stubs, a copy of the approved H-1B petition, an original employment verification letter, the original approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity, and a legitimate employer-employee relationship.

Question #4 – H-1B Nonimmigrant Work Visa
Any H-1B visas left under quota for this year?

Answer #4
The H-1B FY2012 Quota was reached on November 22, 2011, accordingly, you will have to wait until April 1, 2012 to submit an H-1B CAP petition for employment beginning October 1, 2012.

Question #5 – Employment Based Immigration – Green Card
My Priority date will be current soon. I am prepared to file my I-485, what are the associated USCIS filing fees? Do I have to pay for EAD and AP separately?

Answer #5
You will need to make payment in the amount of $1,070.00 or less depending upon your age, which will cover the I-485 processing, the biometrics, the employment authorization document (EAD) processing and the Advance Parole document (AP) processing.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a student on OPT currently working for my company. Her OPT will expire in July of 2012. I need to apply for her H-1B but wasn’t able to make it under this CAP. Will she have to return home prior to October 1, if I file her under the new cap in April 2012?

Answer #6
According to the regulations, an F-1 student who is the beneficiary of an H-1B petition and who has timely filed a Change of Status petition will have his/her status and work authorization (if in OPT) automatically extended until October 1st of the following fiscal year so that there is no “gap” between the time her F-1 stay would have expired and the October 1 start date for the H-1B.

Question #7 – H-1B Nonimmigrant Work Visa
My current H-1B visa expires on 1/14/2012 and I’ve filed for an extension in late October and received a receipt for it. Can I continue working without the new approval?

Answer #7
Yes, under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. During 240 days, there is no INA 245(c) bar to adjustment of status.

Question #8 - Employment Based Immigration - Green Card
My priority date is current as of the January 2012 visa bulletin. I heard through various forum posts that we can call them and provide details of our case so that based on first come first call they would process and issue the GC faster, is this true?

Answer #8
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #9 – Employment Based Immigration – Green Card
Is an approved I-765 any indication that the I-485 is getting close to approval and would eventually be approved without a hitch or are they autonomous processes?

Answer #9
They are separate processes. Therefore, to put it simply, an approved I-765 is not an indication that the I-485 is getting closer to being approved.

Question #10 – Temporary Work Visa – TN Visa
What is required to obtain a TN visa at the border? What documents do I need to have to get the visa?

Answer #10
You must establish that the position in question requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1. You will need to carry your educational documents (degree/transcripts/license, if applicable) and work experience documents (experience letters, resume, tax documents, etc.) to evidence your qualifications for the position. You will also need to present an offer letter and/or employment agreement from the company which clearly explains the position you are seeking to be employed in.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, January 6, 2012!
Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

Our next “Q & A Forum” will take place this Friday, December 23rd, 2011. Act now and submit your questions!

THANK YOU!

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

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

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

Our next “Q & A Forum” will take place this Friday, December 9th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – H-1B Nonimmigrant Work Visa
Any H-1B visas left?

Answer #1
As of November 18, 2011, there were approximately 3,200 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. USCIS will continue to accept cap-subject petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #2 – Family Based Immigration – Green Card
Can I bring siblings with me to the United States when I apply for a green card?

Answer #2
Siblings (Brothers/sisters) are considered a family based preference category and would have to ‘wait in line’ to come to the United States once an Immigrant Petition is first filed on their behalf by a sponsoring relative. Therefore, no your siblings cannot accompany you to the United States when you apply for a green card.

Question #3 – General
If my visa was denied, can I apply again? If so, how soon can I apply again?

Answer #3
Yes, you can apply again, but you should consider the grounds (reasons) for denial of the visa prior to applying again. If you are able to overcome the grounds for denial then maybe you should consider re-applying. We would recommend that you speak with an experienced Immigration Lawyer before re-applying to further discuss your specific situation.

Question #4 – Family Based Immigration – Green Card
I am a US legal permanent resident with a green card, can I get divorced and keep my green card?

Answer #4
It depends. How did you become a Lawful Permanent Resident (LPR), through employment or marriage? If through employment, you should be able to obtain a divorce and legally keep your green card. If through marriage, it depends upon how long you have already been an LPR. If you are still a GC holder within the first two years of marriage, you will have to file Form I-751, Petition to Remove the Conditions of Residence and if you do not, you will be removed. If you are still married, the petition should be filed jointly by you and the spouse through whom you obtained conditional status. However, you may apply for a waiver of this joint filing requirement if: (a) you entered the marriage in good faith, but your spouse subsequently died; (b) you entered the marriage in good faith, but the marriage was later terminated due to divorce or annulment; (c) you entered the marriage in good faith and have remained married, but you have been battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse; or (d) the termination of your status and removal would result in extreme hardship. You will have to provide proof of your reason for applying for the waiver.

Question #5 – General
Will a criminal offense prevent me from becoming a lawful permanent resident in the United States?

Answer #5
The Immigration and Nationality Act (INA) recognizes three categories of crimes that can place a non-citizen at risk of deportation or prevent a non-citizen from ever becoming a lawful permanent resident. (1) Aggravated felonies are the most serious crimes and are specifically defined by statute in the INA. Because of the sentence imposed by the state criminal court, some common misdemeanor crimes can be considered aggravated felonies for immigration purposes. These crimes include theft and crimes of violence. For both of these crimes a non-citizen can be placed in deportation proceedings and deported from the United States, if the person is sentenced to more than one-year imprisonment, including any suspended time. A “crime of violence” is a term vaguely defined by the United States Code and could include convictions for assault in the fourth degree and felony driving under the influence. (2) Crimes of moral turpitude are the second category of crimes that can impact a non-citizen’s ability to remain in the United States. Generally, a crime of moral turpitude is defined as a crime that encompasses a base or vile act. Although the case law interpreting the term is not entirely uniform, the following types of crimes have been held to involve moral turpitude: crimes (felonies or misdemeanors) in which either an intent to defraud or an intent to steal is an element; crimes (felonies or misdemeanors) in which there is an element of intentional or reckless infliction of harm to persons or property; felonies, and some misdemeanors, in which malice is an element; sex offenses, in which some “lewd” intent is an element. Thus, murder, rape, voluntary manslaughter, robbery, burglary, theft, arson, aggravated forms of assault, forgery, prostitution and shoplifting have all been consistently held to involve moral turpitude. (3) A third category of crimes specifically listed in the INA may either trigger deportation or prevent a non-citizen from attaining lawful permanent resident status. Crimes included in this category include violations of any law relating to a controlled substance, domestic violence convictions, judicial determinations of protective order violations and convictions under any law of purchasing, selling, using or possessing a firearm or destructive device.

Question #6 – General
I am on H-1B, just filed I-485, with my pending I-485, can I invest in stocks?

Answer #6
Yes, as an H-1B nonimmigrant, you may own real estate property; you may also invest money in stocks, bonds and mutual funds.

Question #7 – H-1B Nonimmigrant Work Visa
My husband’s petition for nonimmigrant I129 was returned to USCIS for review. It has been 4 months since USCIS received the petition from DOS. How long will we wait for the reaffirmation?

Answer #7
There is no set period of time for the USCIS to review a case that has been returned to them by the Department of State (DOS). The USCIS commonly provides the following response when you request information concerning a case returned to them from a U.S. Consulate: The Petitioner for Non-Immigrant Worker Form I-129 was returned to this office from a U.S. Consulate and is currently pending review. Our office processes these cases as our resources and priorities allow. I would recommend following up with the USCIS National Customer Service Center, 1-800-375-5283 every thirty days to see if any decision has been made. I would wait 6 months before initiating a Service Request with the USCIS.

Question #8 – General
I have to travel to India during the months of February and March 2012…do I have wait for Advance parole to process (How long does it take to approve I-131?) or take appointment at an Indian consulate
a. Do we have to do anything to expedite the process?
b. Since I will be in the midst of green card processing, does the process jeopardize my visa stamping (if my I-131 is not approved by that time)

Answer #8
a. You cannot expedite the process unless you are traveling for medical reasons, death, etc. The processing time is currently 2-3 months for an approval of the I-131. You can only receive the Advance Parole (AP) document while in the U.S., you cannot receive it at an Indian consulate.
b. The GC and the H-1B are two entirely different programs – GC for permanent residency; H-1B for temporary employment. As long as you have a valid underlying H-1B visa and you continue to be employed by the H-1B sponsor, you may still travel on the H-1B visa if your AP is not approved by the time of your intended travel.

Question #9 –H-1B Nonimmigrant Work Visa
I'm currently on F-1 (OPT), and the company I work for just started the process to sponsor me an H-1B visa on 11/18/2011. My OPT will expire in June 2012. I wonder if my H-1B petition will be denied given that my mother filed the I-130 for me in 2009 and I have a family member who is a US citizen. Thanks for your assistance.

Answer #9
Your H-1B petition should not be denied because your mother previously filed an I-130 petition for you or for the mere fact that you have a family member who is a U.S. Citizen.

Question #10 – General
Any update on prevailing wage determinations from the Department of Labor?

Answer #10
The Office of Foreign Labor Certification has provided the following update to the public on the issuing of prevailing wage determinations:

PERM: Became current the week of October 23, 2011
H-1B: Became current the week of November 6, 2011
H-2B: Anticipated becoming current the week of November 27, 2011

“Current” carries a different meaning in each program. A prevailing wage determination is “current” in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, “current” is within 30 days of submission in accordance with the program’s regulations. These dates may be subject to change based on actions not anticipated by the Department at this time, such as any additional judicial determinations or legislative actions. PWD appeals (redeterminations and Center Director Reviews) are being processed as resources allow, with priority placed on becoming current on initial PWD requests in each of the respective program areas.

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

Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

Our next “Q & A Forum” will take place this Friday, November 25th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – Employment Based Immigration – Green Card
I have applied to become a lawful permanent resident of the United States, but I have a family emergency outside of the country. Will I have trouble re-entering the United States upon my return?

Answer #1
If you applied for and have a valid Advance Parole (AP) document then you should not experience any issues when re-entering the United States. Carry your advance parole document and your I-485 receipt notice as evidence of your Adjustment of Status filing. If you did not apply for Advance Parole (AP) and you have a valid H-1B nonimmigrant visa, then you should be able to re-enter as an H-1B nonimmigrant. Valid meaning an unexpired visa status and you are currently employed by the H-1B sponsoring employer.

Question #2 – Nonimmigrant Visas
What is the difference between an H-1B and an H-2B visa?

Answer #2
An H-1B is a nonimmigrant Specialty Occupation visa. Specialty Occupations are defined as those that require a theoretical and practical application of a body of highly specialized knowledge, and the attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. The H-1B visa allows foreign workers to enter the U.S. and work in a variety of fields ranging from architecture and engineering to teaching and medicine. The H-1B visa offers a wide range of employment possibilities and is a logical first step toward permanent immigration. In order to qualify for H-1B classification, the applicant must have at least a U.S. bachelor’s degree or its foreign equivalent AND the job sought must require at least a bachelor’s degree or its equivalent. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S. The period of employment is generally for a period up to three years, and may be extended for up to six years. Extensions may be available beyond the sixth year if green card processing has been initiated on behalf of the individual.

H-2B nonimmigrant visas are available for individuals to perform nonagricultural work of a temporary or seasonal nature, if U.S. workers capable of performing such service or labor cannot be found in the U.S. This classification requires the Sponsoring Employer to conduct active recruitment to determine if U.S. workers are available to fulfill the temporary need. Nonagricultural work includes Amusement Park workers; Bellhops; Bricklayers; Cannery workers; Commercial, Industrial and Residential Cleaners;Construction workers; Cooks; Crab Meat Processors; Fishing Vessel Deckhands;Dining Room Attendants; Electricians; Fast Food Workers; Forest Workers; Game Attendants; Industrial Groundskeepers; Landscapers; Kitchen Helpers; Sales Clerks; Tree Planters and the list goes on. In order to be eligible for H-2B classification, the Employer (Petitioner) should confirm that the job is temporary, that the Department of Labor (DOL) has certified that no U.S. workers are available to perform the job, that the beneficiary’s employment in the U.S. will not harm U.S. workers, and that all requirements have been met. The employer’s need for the services or labor shall be either: (1) a one-time occurrence; (2) a seasonal need; (3) a peakload need; or (4) an intermittent need. The period of employment is generally for a period of 1 year or less, but could be for a specific one-time need of up to 3 years. The foreign national must also be able to demonstrate that they have strong ties to their home country and will return at the end of the season. Nationals from the following countries are eligible to participate in the H-2B visa program: Argentina; Australia; Belize; Brazil; Bulgaria; Canada; Child; Costa Rica; Croatia; Dominican Republic; Ecuador; El Salvador; Ethiopia; Guatemala; Honduras; Indonesia; Ireland; Israel; Jamaica; Japan; Lithuania; Mexico; Moldova; the Netherlands; New Zealand; Nicaragua; Norway; Peru; Philippines; Poland; Romania; Serbia; Slovakia; South Africa; South Korea; Turkey; Ukraine; United Kingdom and Uruguay. Nationals from other countries not listed above may be eligible; however, additional evidence will be required. This is not a self-petitioning category; therefore the applicant must have a sponsoring employer in the U.S.

Question #3 – General
I’ve been told that I can find my case status online. Where would I go to find out my approximate processing time?

Answer #3
The USCIS website provides case status information. You will find the case status online mechanism at www.uscis.gov on the left hand side of the screen. Use your receipt number found on Form I-797 in the upper left hand corner and enter it into the box. If you wish to determine the applicable processing time for your case, you will find a link on the USCIS website on the left hand side of the screen which reads: Processing Times, click on the link and scroll down to the bottom and find the Service Center where your case is undergoing processing. You will find the Service Center where your case was filed on Form I-797. Your Form I-797 will also display the Form type/number that was filed on your behalf in the upper right hand corner.

EAC – Vermont Service Center
SRC – Texas Service Center
WAC – California Service Center
LIN – Nebraska Service Center

Question #4 – Family Based Immigration - Green Card
Can a relative currently living in the United States legally write my affidavit of support?

Answer #4
Yes, if the relative currently living in the United States is willing and able to be a sponsor/joint sponsor and is aware of and understands the responsibilities associated with being a sponsor/joint sponsor.

Question #5 – Employment Based Immigration - Green Card
My wife and I have been working on H-1B for different employers. My employer applied for my green card in 2007 and my I-140 has been approved. My wife's H-1B term ends on Jan 2012. If she wishes to continue her employment with the same employer after Jan 2012, is she required to use her Employment Authorization Documents?

Answer #5
If she is no longer eligible to extend her H-1B nonimmigrant visa status beyond January 2012 , then yes, she will be required to utilize her Employment Authorization Document (EAD) to legally remain working.

Question #6 – Green Card
I am an Indian born citizen, but I have also attained Canadian citizenship. When I am applying for an I-485, which priority dates do I need to regard: Canada or India?

Answer #6
Country of Chargeability is determined by your country of birth. Accordingly, when applying for I-485 you would need to monitor the priority dates for India in the preference category under which your case was filed.

Question #7 – H1B Nonimmigrant Visa
Any H1B visas left under cap?

Answer #7
As of November 2, 2011, there were approximately 14,200 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. USCIS will continue to accept cap-subject petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #8 – Employment Based Immigration - Green Card
What is AC21 Portability?

Answer #8
AC21 portability allows an individual to change employers while undergoing the Green Card process without having to start the process over from the beginning with a new employer. To qualify for AC21 portability, a foreign national must be the beneficiary of a certified labor application (first step of the green card process), an approved I-140 petition (second step of the green card process) and have an I-485 application (third step of the green card process) pending over 180 days. A new position which is within the “same or similar” occupational classification as listed on the certified labor application would make the applicant eligible for AC21 portability.

Question #9 – Family Based Immigration - Green Card
As a U.S. citizen, for whom can I file Form I-130, Petition for Alien Relative?

Answer #9
As a U.S. citizen, you may file Form I-130, Petition for Alien Relative on behalf of the following relatives:
Immediate relatives (no annual limit/quota) - spouse; unmarried children under age 21; parents

Preference relatives (subject to priority dates/preference categories) – unmarried and married children of any age; siblings.

Question #10 – General
What is the difference between and immigrant and non-immigrant visa?

Answer #10
An immigrant visa is for individuals who intend to permanently live in the United States.

A nonimmigrant visa is for people who enter the United States on a temporary basis – whether for tourism, business, temporary work or study. Once a person has entered the United States in a nonimmigrant visa status, they are restricted to the activity or reason for which they were granted entry.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 25, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

The Department of State has released its latest Visa Bulletin.

Click here to view the December 2011 Visa Bulletin.

The December 2011 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

There has been significant forward movement in the EB-2 category for the past 3 visa bulletin issues. We have received some reliable information from Charles Oppenheim, Chief, Immigrant Visa Control and Reporting Division, DOS, that the upcoming advancement of the cutoff dates in EB-2 for India and China will advance again for the next several bulletin issues. We hope that the trend continues.

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

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

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

Our next “Q & A Forum” will take place this Friday, November 11th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – General
What is PIMS? What is CLAIMS?

Answer #1
PIMS stands for Petition Information Management System which is an electronic report generated by the Department of State’s (DOS) Kentucky Consular Center (KCC) that collects nonimmigrant visa petition approval information from the USCIS.

CLAIMS stands for Computer Linked Application Information Management System. CLAIMS provides USCIS employees with automated support for adjudicating cases and processing various notices, among other things. CLAIMS capabilities include case tracking, status update, notice reporting, and document production.

Question #2 – H4 – Dependent Visa
My H1B visa was approved and notice sent to Consulate. My wife and child wish to come to U.S. with me. Can I apply for my wife and child during my H1B consulate interview? Please advise.

Answer #2
If the beneficiary or the beneficiary’s spouse/children are outside the United States and the beneficiary wishes to apply for a derivative visa (referred to as an H4 visa) abroad, and the H4 visa application can be made and is available on walk-in basis at the U.S. Consulate abroad along with or after the grant of the H1B approval. No other processing is required for an H4 visa abroad. Contact the consulate abroad or an Information Officer at the United States Department of State Visa Office at 202.663.1225 for the procedures or documents that may be required.

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

Answer #3
As of October 21, 2011, there were approximately 18,800 H-1B Regular CAP subject nonimmigrant visas remaining and the H-1B Masters CAP has been reached. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Question #4 – Employment Based Immigration – Green Card
I am a Pakistani National but was born in UAE. Should i be applying for Green Card on the basis of my country of birth or nationality?

Answer #4
It is based on country of birth, since you are not from China, India, Mexico or the Philippines, your case would fall under ‘All Chargeability Areas’ and the time period whether from Pakistan or the United Arab Emirates would be the same.

Question #5 – Family Based Immigration – Green Card
At what stage of family based green card does the priority date attach?

Answer #5
A priority date is assigned in a family based green card immigration proceeding when the I-130 petition is received by the USCIS.

Question #6 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations for PERM?

Answer #6
As of October 24, 2011 -
The Office of Foreign Labor Certification provided the following update to the public on its plans for becoming current on issuing prevailing wage determinations:
PERM: Week of October 23, 2011
H-1B: Week of November 6, 2011
H-2B: Week of December 18, 2011
"Current" carries a different meaning in each program. A prevailing wage determination is "current" in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, "current" is within 30 days of submission in accordance with the program's regulations. These dates may be subject to change based on actions not anticipated by the Department at this time such as any additional judicial determinations. The PWD appeals are being processed as resources allow with priority being placed on becoming current on initial PWD requests in each of the respective program areas.

Question #7 – Employment Based Immigration – Green Card
At what stage of employment based green card does the priority date attach?

Answer #7
A priority date is assigned in an employment based green card immigration proceeding when the labor application is submitted to the Department of Labor (DOL). If no labor application is required for the preference category, then the priority date is assigned when the I-140 Immigrant Petition is received by the USCIS.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
We have an employee that has a U.S. Master’s degree; we noticed Masters CAP exemption was reached. Do we have to wait until next year to file for her H-1B work visa? Is there any way around this?

Answer #8
Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once the USCIS has received sufficient petitions to reach the advanced degree exemption.

Question #9 – Employment Based Immigration – Green Card
Can you premium processing the GC process?

Answer #9
You may only premium process the I-140 Immigrant Petition, which is the petition that is filed after the labor application is certified by the Department of Labor (DOL). You cannot speed up the process of labor certification with the DOL, nor the process of adjudicating the Adjustment of Status petition with the USCIS.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have heard from friends and by reading the forums that the Consulates are very strict and ask for original I-797 approval notice but my employer is not willing to give me the original, they only provide me with bottom portion of original. Can I request USCIS to give me another original to take to Consulate? Is there anything I can do, I do not want rejected based on me not having original I-797 approval?

Answer #10
You do not need the entire original I-797 approval notice to schedule/attend a Consulate interview. Consular Officers are able to verify all approved petitions through the PIMS or CLAIMS system, and therefore the I-797 original notice is not required in order to verify that the petition has been approved. Additionally, the original I-797 notice clearly provides that the bottom portion may be torn off and provided to the applicant to be used for purposes of applying for a visa at a Consulate abroad.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, November 11, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.

As of October 24, 2011 -
The Office of Foreign Labor Certification is providing this update to the public on its plans for becoming current on issuing prevailing wage determinations:

PERM: Week of October 23, 2011
H-1B: Week of November 6, 2011
H-2B: Week of December 18, 2011

"Current" carries a different meaning in each program. A prevailing wage determination is "current" in the PERM and H-1B programs when it is issued within 60 days of submission. For H-2B prevailing wage determinations, "current" is within 30 days of submission in accordance with the program's regulations. These dates may be subject to change based on actions not anticipated by the Department at this time such as any additional judicial determinations. The PWD appeals are being processed as resources allow with priority being placed on becoming current on initial PWD requests in each of the respective program areas.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Source: AILA Doc. No. 11102421

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

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

Our next “Q & A Forum” will take place this Friday, October 28th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – General
I was able to file I-485 applications for myself and my wife in July and since then we have received the combined EAD/AP card. Can my wife now apply for a SSN? My health insurance coverage is requesting that she obtain a SSN.

Answer #1
Yes, your wife can now apply for a Social Security Number. She will need to take her valid Employment Authorization Document (EAD), her passport, birth certificate and the completed application to the local Social Security Administration office to apply.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under H1B CAP? MASTER’S CAP?

Answer #2
As of October 7, 2011, there were approximately 24,000 H-1B Regular CAP subject nonimmigrant visas remaining and 900 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #3 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations? Please provide an update.

Answer #3
As of October 14, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in late July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 30, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in early July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 15, 2011 - DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 - Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 - The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Question #4 – Employment Based - Green Card
I would like to ask - i have a pending eb3 application with priority date on May 2007 but a new employment visa is offered to me - h1b. Can i be approved with the said visa even if i have pending eb3 application? Thank you.

Answer #4
It depends. You have not provided enough information to provide a solid answer to your question. The temporary H-1B nonimmigrant visa is a different process than the Employment Based Green Card process. I would recommend that you contact an experienced Immigration Attorney to discuss your eligibility. Please feel free to contact our office to schedule a consultation.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
We received approval from USCIS for H-1B for our new employee. Our new employee scheduled consulate interview and was denied visa, how is this possible?

Answer #5
Form I-797 indicates that the approval is not a visa, only the U.S. Consulates have the authority to grant or deny a nonimmigrant visa. If an individual has an H1B petition approved by USCIS that does not mean that the U.S. Consular Officer will automatically issue the H1B visa. The Consular Officer may ask a serious of questions and if they believe that the information obtained during the questioning was not information available at the time of the USCIS’s approval of the petition, they will likely issue a denial and provide a written explanation as to why the visa was denied.

Question #6 – Family Based Immigration – Green Card
My wife arrived in the U.S. about three (3) weeks back. She went through Consular Processing and received temporary LPR stamp valid for one year. When should we be receiving her physical Green Card? Do we need to go to Airport again for issuance or will the USCIS send the Green Card to her?

Answer #6
The USCIS should send/mail the Green Card to the address they have listed. If you have not received the Green Card within 60 days from her arrival, contact the USCIS National Customer Service Center (NCSC) at 1-800-375-5283.

Question #7 – Diversity Lottery (DV)
Can I apply for DV now?

Answer #7
Yes, applications for the DV 2013 random lottery are being accepted electronically until Saturday, November 5, 2011.

Question #8 – Temporary Work Visas – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months to process H1B. So I am not sure why I have not received decision yet, my case was filed in June. Can you tell me why it is taking so long?

Answer #8
Although the USCIS processing times may state 2 months, you have to factor in that when it is posted, that data is already 45 days old. Also, due to the FY2012 H-1B CAPS still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, you should be aware of the background with the processing times for the H-1B nonimmigrant visa.

Question #9 – Family Based Immigration – Green Card
What happens if my wife and I do not file to remove the conditions on her permanent residency?

Answer #9
If you do not apply to remove the conditions near the expiration of her two-year conditional period then the permanent residency automatically expires and she is subject to deportation and removal. To avoid this, within 90 days of the expiration of the conditional period, she must file Form I-751, Petition to Remove Conditions on Residence.

Question #10 – Marriage Based Immigration –Green Card
My spouse and I have been called for Stokes interview. What exactly is a “Stokes” interview?

Answer #10
A “Stokes” interview is the last opportunity the USCIS provides for you and your spouse to prove the bona fides of your marriage. If the USCIS does not think that your marriage is legitimate, they will schedule a “Stokes” interview. The husband and wife are separately questioned by a USCIS Officer regarding their relationship history, daily interactions, relationship in general, and presence on social networking websites, etc. The interview/questioning is recorded and an attorney is permitted to attend.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, October 28th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.

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

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

Our next “Q & A Forum” will take place this Friday, October 14th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – Employment Based Immigration – Green Card
My priority date is current according to October Visa Bulletin. I want to apply for I-485, regarding my birth certificate – it is not available and as I understand it, I need to have a certified birth certificate in order to apply. Can I submit something else? Any suggestions?

Answer #1
A certified copy of an original Birth Certificate is requested (if you do not have an original BC, please obtain either a non-availability certificate or a re-issued BC), in addition, if your BC is not registered within a year of your birth, please obtain two birth affidavits.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
On F1/OPT, my employer filed an H-1B for me back in July, no decision yet. Am I covered under “cap gap”?

Answer #2
H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. Timely filed means filed within the H-1B acceptance period beginning April 1, 2011. The paperwork (LCA and I-129) must also reflect a beginning employment date of October 1, 2011 to be covered under the CAP GAP.

Question #3 – Family Based Immigration – Green Card
What is the age limit on USC sponsoring foreign parent or foreign relative?

Answer #3
For parents of U.S. Citizens – the U.S. Citizen Petition must be at least 21 years of age. (Immediate relatives of U.S. citizens may immigrate to the United States in unlimited numbers. Currently, there is no annual limit or quota that applies to this category.)
For sisters and brothers of U.S. Citizens – the U.S. Citizen Petition must be at least 21 years of age. (Depending on the demand, these individuals will most likely have to wait in line, possibly for many years, prior to being able to obtain a green card.)

Question #4 – Employment Based Immigration – Green Card (AC-21)
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #4
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain for the H1B CAP?

Answer #5
The USCIS has not provided an updated on the receipt of H-1B CAP subject petitions since September 9, 2011. As of September 9, 2011, there were approximately 32,800 H-1B Regular CAP subject nonimmigrant visas remaining and 3,300 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #6 – Employment Based Immigration – Green Card
Has the suspension been lifted for the issuance of Prevailing wage determinations? I am hearing conflicting information on the internet – forums.

Answer #6
As of September 30, 2011 – More AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted in early July 2011 (OES based). Notice has not yet been provided by the DOL that the suspension has been lifted.

As of September 15, 2011 - DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 - Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 - The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I live in VA and my driver’s license is expiring. What do I need to do? My H1B extension is pending and I need to renew my license soon, like in three weeks! Any suggestions?

Answer #7
Information provided by the Virginia Department of Motor Vehicles website - If you are authorized to be in the U.S. temporarily and have been issued a limited duration driver's license, the license cannot be renewed. A subsequent license will be processed as an original license. However, you will not be eligible to receive an original driver's license if your authorized stay in the U.S. is less than 30 days from the date you apply. Each time you apply for an original driver's license you must show two proofs of identity (one proof of identity if under age 19), one proof of legal presence and one proof of Virginia residency. Proof of your social security number (if you have been issued one) is required also. If you present a valid legal presence document without an expiration date, you will be issued a limited duration license that is valid for one year. This does not apply to a U.S. birth document since it does not contain an expiration date. Foreign applicants applying should present the following - USCIS form I-797 displaying applicant’s name (Depending on the purpose and nature of the form, the I-797 may not be accepted. The I-797 for an I-765 petition is not accepted); and an unexpired foreign passport with an Unexpired or expired U.S. visa and unexpired or expired I-94. You most certainly can upgrade your filing to Premium Processing.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our consultants is nearing his 6th year on H-1B visa status, but he has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get a three year extension with our company.

Answer #8
Yes. Pursuant to AC21 law, an H-1B immigrant may extend his or her status beyond the 6 year limitation if a labor certification, I-140, or employment based adjustment of status application has been filed where 365 days or more have elapsed since the filing of the labor certification or I-140. Or, where the H-1B immigrant has an I-140 petition which has been approved under the employment based green card and the AOS/485 is pending due to the unavailability of visa numbers.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Similar question to #7. I live in MD and my driver’s license is expiring. My H1B extension is pending and I need to renew my license. Any suggestions?

Answer #9
Information provided by the Maryland Department of Transportation, Motor Vehicle Administration website - If you hold a Maryland Driver’s License with the “T” restriction indicating that your license is a Limited Term driver’s license, expiring on the date that your lawful status in the U. S. expires, you will be required to provide new or extended proof of your lawful status. You will be required to provide proof of a social security number (SSN) that can be verified by the Social Security Administration, or proof of ineligibility for an SSN. The name(s) on the actual Social Security Card or other acceptable document used to provide proof of a valid, verifiable SSN or proof of ineligibility MUST match the source document(s) used to provide proof of the applicants' Age and Identity and licensure if required. If you held a valid Maryland driver's license, permit or identification card prior to April 19, 2009, you may be eligible for a subsequent license, permit, or identification card without proof of lawful presence or social security number, but it will not be acceptable for official federal purposes. (1) Please check your renewal notice for any errors. (2) Present your renewal notice, expiring license, and fee in person to any one of the MVA locations. (3) Pass a vision screening (4) Present new lawful status documentation if your Maryland license is expiring due to the expiration of your lawful status. You most certainly can contact the MVA itself and ask if that facility would accept your I-129 receipt notice as proof of your pending extension or upgrade your filing to Premium Processing.

Question #10 – Employment Based Immigration – Green Card
We appealed a denial of I-140 Immigrant Petition filed on behalf of one of our employees. How much longer can we expect to wait for a decision to be made?

Answer #10
According to the Administrative Appeals Office, Appeals filed under the EB2 preference category (Professionals with Advanced Degrees) are currently being reviewed within 31 months of filing the appeal. Appeals filed under the EB3 preference category (Skilled and Professional workers) are currently being reviewed within 35 months.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, October 14th, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

Our next “Q & A Forum” will take place this Friday, September 30th, 2011. Act now and submit your questions!

THANK YOU!

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

As of September 15, 2011 -
DOL Liaison has received reports that AILA members are beginning to receive PERM prevailing wage determinations for requests that were submitted as recently as June 23, 2011.

As of September 9, 2011 -
Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011. After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October. After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1. DOL commits to have H-1B prevailing wage determinations current by the second week of November. The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change. DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website. DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 -
The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

We will continue to post new information as soon as it becomes available.

Source: AILA Doc. No. 11072571

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

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain for the H1B CAP?

Answer #1
As of September 9, 2011, there were approximately 32,800 H-1B Regular CAP subject nonimmigrant visas remaining and 3,300 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #2 – Employment Based Immigration – Green Card
Does green card processing duration depends on the country of birth or country of nationality? (I am asking this because I am a Pakistani National but born in United Arab Emirates so wanted to know if my processing will take less time or not)

Answer #2
It is based on country of birth. Since you are not from China, India, Mexico or the Philippines, your case would fall under ‘All Chargeability Areas’ and the time period whether from Pakistan or the United Arab Emirates would be the same.

Question #3 – Marriage Based Immigration –Green Card
I am marrying a United States citizen in a few weeks, do you know when I can expect to have my interview and eventually get my green card?

Answer #3
Once you have married and have submitted your paperwork to the USCIS, it is taking approximately 4-6 months nationwide to obtain an interview appointment. This is an estimate as all cases are not the same and the circumstances in one case may be different than in another. If there are any prior marriages, criminal charges, or other circumstances that could affect the case, processing may take even longer.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
We are a new company utilizing the H-1B temporary work nonimmigrant visa program. Quick question: it’s okay to give copies of the entire petition to the H-1B employee once approved?

Answer #4
You MUST provide each applicant with a complete copy of the entire petition (including the LCA), it is a REQUIREMENT, and you must retain a complete copy of the petition within the applicant’s immigration file (public access file).

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have transferred my H1 from Employer A to Employer B and it got denied. Employer B has appealed the denial. Now my question is: Can I go out of US and come back when appeal is in process. If so what will be option?

Answer #5
Depending upon your I-94 card, if it has expired, you need to depart the country, as receiving a denial leaves you without a valid nonimmigrant visa status, in violation of U.S. immigration laws and can negatively affect your re-entry to the U.S. in the future. You will either need to wait in your home country or elsewhere until a decision is made, or until you find another sponsoring employer willing to sponsor your H-1B nonimmigrant visa for temporary employment in the United States.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
Same set of facts as above. What will be approximate processing time for appeal to be decided?

Answer #6
The current processing time for an H-1B appeal is 21 months.

Question #7 – Employment Based Immigration – Green Card
I’ve been working at my current company for nearly 5 years and have a bachelor’s degree in EE. Can I change jobs within the company after the five year mark and be able to use the experience for my current job towards my labor certification and moving to an EB-2 category?

Answer #7
No, you cannot use the experience obtained in your current job to apply for another position within the same company. The experience needed for EB-2 classification cannot be from your current employer.

Question #8 – Employment Based Immigration – Green Card
Is it possible to apply for Green Card for me and my wife in parallel to H1 and H4?

Answer #8
Yes, it is possible to initiate a GC case parallel to the H-1B/H4 proceedings if there is a legitimate permanent position available within the company and the employer is willing to sponsor you for the permanent position.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My OPT Extension Period ends on May 15, 2012 also my student visa expires on the same day. Do I have to apply for H1 this year or can I apply next year?

Answer #9
If your employer wishes to continue your employment, they should file an H-1B petition on your behalf under the FY2012 Cap which opened on April 1, 2011 and is still available. Employment does not begin until October 1, 2011; if however, the CAP is reached within the next few days, you will not be able to petition again until next year and will begin to accrue unlawful status unless you transfer to another nonimmigrant visa status or return to your home country once your OPT expires.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
After graduation I worked for a company ‘A’ as a database administrator using my optional practical training /OPT/ for less than a year. Initially I was on a student visa until my employer sponsored me for a H1B visa, which was successfully selected to an H1B visa status and to begin in October 2011. Unfortunately for personal reasons I left USA and returned to my country on the 28th of August. On August 31, 2011 the H1B visa was terminated by my former employer. At this time I have another employment opportunity stateside and wish to reclaim my visa status. I’m writing you to get information as to what I can do to return my status for the H1B visa. Can you please provide me with any information on the process required to do this? Does my future employer need to sponsor me as before? Currently I’m in my home country, is it possible to do this from here? How long does the procedure take? I hope you can help me with my situation.

Answer #10
The normal process for H-1B sponsorship starts when you or your employer contacts our office to initiate the process. Your employer would contact our office, discuss the regulations and expectations of H-1B sponsorship, and sign a legal agreement detailing the legal fees associated with the preparation and filing of the H-1B visa petition. An H-1B questionnaire and documents checklist will be emailed to you for your review and completion. You would then complete the H-1B questionnaire, and send all requested background documents to our office to begin the process. Once the legal payment, the completed questionnaire and background docs have been received in our office, we would be able to begin preparing your paperwork. Once your forms have been prepared and thoroughly reviewed, we email the final documents to your sponsoring employer for their review, signatures and posting requirements. These forms must then be returned to our office with the requisite USCIS filing fees, and will be filed on your behalf with the USCIS. Upon receipt of the H-1B petition, the USCIS will issue a receipt notice containing a specific number which will allow you to monitor your case while it is being processed. It is possible for our office to prepare and file your paperwork while you are in your home country. If the case is filed under regular processing, a decision will be made in approximately 3-4 months. If the case is filed under premium processing, a decision should be made within 15 calendar days after submission of the case unless an RFE is issued.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 30th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog!

As of September 9, 2011 -
Of the approximately 3,500 H-2B wage redeterminations to be completed by the end of September, DOL has completed approximately 2,700. DOL expects to be current on H-2B redeterminations by the week of Sept 18, 2011.

After H-2B redeterminations are current, a few employees will continue to work on “straggler” H-2B cases and all others who were working on redeterminations will be reassigned to work on new H-2B prevailing wage requests. DOL expects H-2B prevailing wage determinations to be current (regulatory 30 days) by mid-October.

After H-2Bs are current, DOL will shift resources to focus on PERM prevailing wage requests. DOL commits to have PERM prevailing wage requests current (processed within 60 days of filing) by November 1.

DOL commits to have H-1B prevailing wage determinations current by the second week of November.

The aforementioned dates were said to be the “worse case scenario,” absent something catastrophic (e,g. hurricane) or other major event/change.

DOL agreed that stakeholders would benefit from updates on progress made toward these processing targets, and would consider publishing an update on the status of prevailing wages at the end of September on the OFLC website.

DOL repeated that it will not waive any of the regulatory requirements and did not provide any additional guidance on alternative avenues for PERM cases that are ripe for filing but for the lack of a prevailing wage determination.

As of August 25, 2011 -
The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

We will continue to post new information as soon as it becomes available.

Source: AILA Doc. No. 11072571

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

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

Our next “Q & A Forum” will take place this Friday, September 16th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – Employment Based Immigration – Prevailing Wage
Has the suspension been lifted for the issuance of Prevailing wage determinations? I am hearing conflicting information on the internet – forums.

Answer #1
As of August 25, 2011 - The Department of Labor (DOL) Liaison received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.
Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.
We have not received any information that the suspension has been lifted as of yet. Stay tuned to MVP Law Group, as we will continue to post new information as soon as it becomes available.

Question #2 – Employment Based Immigration – Green Card
My spouse and daughter have received their Green Cards but I have not. I filed for our GCs through my employer – employment based. What do I need to do to fix this? Is there a problem with my case? Could my GC be denied? Please advise.

Answer #2
Based on the small amount of information you have provided, it seems like there may be an issue with the issuance/mailing of your Green Card. Your spouse and daughter would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and daughter are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 30 days from the date your spouse and daughter received their Green Cards by calling 1-800-375-5283.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain for the CAP for FY2012 beginning October 1, 2011?

Answer #3
As of August 26, 2011, there were approximately 36,000 H-1B Regular CAP subject nonimmigrant visas remaining and 4,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My current H-1B visa expires on 9/14/2011 and I’ve filed for an extension in late July and received a receipt for it. Can I continue working without the new approval?

Answer #4
Yes, under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. During 240 days, there is no INA 245(c) bar to adjustment of status.

Question #5 – General
Is a new I-9 form required when an applicant applies for an extension to their employment authorization and are then granted the extension?

Answer #5
A new I-9 form is not required, but Section 3 of the original form should be completed by the authorized representative of the Company prior to the expiration of the applicant’s employment authorization.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa: Traveling
I am planning on traveling out of US for short trip. I heard from friends that I may not be able to obtain a new visa stamp for my recently approved I-129 and come back. Please advise.

Answer #6
If you MUST travel on H-1B status, we recommend that you have the following: at least two months’ worth of pay stubs, a copy of the approved H-1B petition, an original employment verification letter, the original approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have an H-1B application pending since early June 2011, no RFE issued yet. Can I contact USCIS and make a service request for them to look further into the case and why it is taking so long?

Answer #7
Please review the processing times prior to calling for the Service Center where your case is being adjudicated. If your case is in fact outside of the normal processing time, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

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

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
My brother needs to file H-1B. If he needs to apply for his new H1B under the quota, is the quote full or is it still open for this year or would he need to wait till April for new quota to open and wait till October 2012 to start work.

Answer #8
The FY2012 quota, with employment beginning October 1, 2011 remains open. As of August 26, 2011, there were approximately 36,000 H-1B Regular CAP subject nonimmigrant visas remaining and 4,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Question #9 – Employment Based Immigration – Green Card - EAD Renewal
I filed for my EAD renewal back in May 2010 and it is still pending. My current EAD expires next week. What are my options moving forward - can I expedite the EAD renewal process since my card is expiring next week, can I continue to work with the receipt notice?

Answer #9
To my knowledge you normally cannot expedite an EAD renewal request; however, after an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved. You MAY NOT continue to work using the EAD receipt notice as the receipt is not evidence of an approval.

You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.

Question #10 – Temporary Work Visa – H2B Nonimmigrant Visa
How many H-2B nonimmigrant visas remain under the 2nd half of FY2011, if any? Under the 1st half of FY2012?

Answer #10
As of 8/26/11, USCIS receipted 30,999 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year (FY) 2011 (April 1 - September 30). This count includes 29,921 approved and 1,078 pending petitions.

As of 08/26/11, USCIS receipted 4,326 petitions toward the 33,000 H-2B cap amount for the first half of Fiscal Year (FY) 2012, (October 1 - March 31). This count includes 3,173 approved petitions and 1,153 pending petitions.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 16th, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

The following immigration-related bills were introduced into the House of Representatives and the Senate in July-August 2011 and summarized below by AILA (American Immigration Lawyers Association):

Senate Bills

Immigration Fraud Prevention Act of 2011 - S. 1336
Introduced by Sen. Feinstein (D-CA) on 7/7/11
Summary: Prevents immigration fraud by making it a Federal crime to defraud individuals in connection with any matter arising under immigration laws.

Hinder the Administration's Legalization Temptation (HALT) Act - S. 1380
Introduced by Sen. Vitter (R-LA) on 7/12/11
Summary: Suspends until Jan. 21, 2013 certain provisions of federal immigration law.

Trafficking in Persons Report Improvement Act of 2011 - S. 1362
Introduced by Sen. Webb (D-VA) on 7/13/11
Summary: Simplifies the Trafficking in Persons Report by reducing the number of country categories and ranking countries within each category according to their relative adherence to the minimum standards set forth in TVPA of 2000.

Helping Agriculture Receive Verifiable Employees Securely and Temporarily (HARVEST) Act of 2011 - S. 1384
Introduced by Sen. Chambliss (R-GA) on 7/19/11
Summary: Amends the INA to provide for the temporary employment of foreign agricultural workers.

Humane Enforcement and Legal Protections for (HELP) Separated Children Act - S. 1399
Introduced by Sen. Franken (D-MN) on 7/21/11
Summary: Protects children affected by immigration enforcement actions.

S. 1405
Introduced by Sen. Feinstein (D-CA) on 7/21/11
Summary: Private bill for the relief of Guy Privat Tape and Lou Nazie Raymonde Toto.

House Bills

H.R. 2805
Introduced by Rep. Lofgren (D-CA) on 8/5/11
Summary: Amends Section 220 of the Immigration and Nationality Technical Corrections Act of 1994 to make permanent made by the section.

Strengthening the Child Welfare Response to Human Trafficking Act of 2011- H.R. 2730
Introduced by Rep. Bass (D-CA) on 8/1/11
Summary: Amends Part E of Title IV of the Social Security Act to better enable State child welfare agencies to prevent human trafficking of children and serve the needs of children who are victims of human trafficking.

Hinder the Administration's Legalization Temptation (HALT) Act - H.R. 2497
Introduced by Rep. Smith (R-TX) on 7/12/11
Summary: Suspends until Jan. 21, 2013 certain provisions of federal immigration law.

H.R. 2556
Introduced by Rep. Ryan (D-OH) on 7/15/11
Summary: Suspends the issuance of visas to nationals of Brazil until Brazil amends it laws to remove the prohibition on extradition of nationals of Brazil to other countries.

Humane Enforcement and Legal Protections for (HELP) Separated Children Act - H.R. 2607
Introduced by Rep. Woolsey (D-CA) on 7/21/11
Summary: Protects children affected by immigration enforcement actions.

Military Families Act - H.R. 2638
Introduced by Rep. Filner (D-CA) on 7/25/11
Summary: Authorizes the adjustment of status for immediate family members of individuals who served honorably in the Armed Forces of the United States during the Afghanistan and Iraq conflicts.

Jobs for Americans Act of 2011 - H.R. 2670
Introduced by Rep. Brooks (R-AL) 7/27/11
Summary: Provides that States and local government may pass laws that identify illegal aliens, deter illegal aliens from entering the United States, apprehend illegal aliens, or encourage or otherwise cause illegal aliens to leave the United States.

H.R. 2556
Introduced by Rep. Ryan (D-OH) on 7/15/11
Summary: Prohibits the issuance of a visa to a citizen, subject, national, or resident of Brazil until Brazil has removed the prohibition on extradition of Brazilian nationals to other countries. The bill authorizes the President to waive such prohibition on a case-by-case basis if in the U.S. national interest.

Source: "AILA InfoNet Doc. No. 11082563 (posted Aug. 25, 2011)"

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

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

Our next “Q & A Forum” will take place this Friday, September 2nd, 2011. Act now and submit your questions!

THANK YOU!

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

As of August 25, 2011 -
The Department of Labor (DOL) Liaison has received reports from members that PERM prevailing wage determinations are beginning to be received for requests submitted in early June 2011. Additionally, the American Immigration Lawyers Association (AILA) has been in discussions with other stakeholders on possible courses of action, including individual mandamus actions, if DOL does not resume issuing prevailing wage determinations promptly.

Original Update: The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.

We will continue to post new information as soon as it becomes available.

Source of Information: AILA InfoNet Doc. No. 11072571

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

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP for FY2012 beginning October 1, 2011?

Answer #1
As of August 12, 2011, there were approximately 39,700 H-1B Regular CAP subject nonimmigrant visas remaining and 5,300 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #2 – Family Based Immigration – Green Card
My wife and I, USC, are from El Salvador and we are going for vacation this weekend for a few weeks back to El Salvador. We have an adult child who still lives in El Salvador with his wife and children – we are interested in bringing him over here to the United States. Can you let us know what time period we would be looking at for bringing him over here as a Permanent Resident?

Answer #2
According to the September Visa Bulletin which is effective beginning September 1, 2011, the Family Based third preference category (F3) for all chargeability areas except China, India, Mexico and the Philippines, is backlogged, this means, that you must wait until a visa becomes available, until the priority date becomes current. Individuals in that preference category with priority dates of August 22, 2001 and earlier are being serviced. Accordingly, you would be looking at a time period of approximately 10+ years, if not longer, as it all depends upon the availability of immigrant visas. The priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

Question #3 – General
I work for a company in San Bernardino, CA, a pharmaceutical company. They have expressed an interest in sponsoring my green card. I have a few friends in Maryland who used your firm for other immigration services and I wanted to know if I could use your firm also to process my green card? With me in California and your firm in Maryland, is it legal, can we do this?

Answer #3
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals.. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.

Question #4 – Employment Based Immigration – Green Card
Can a company sponsor my GC as an United Arab Emirates born individual in parallel to H1? (I was born in UAE and I have searched that GC processing depends on your birth country and my GC will be approved in just 6 months).

Answer #4
Based on the general information you have provided, a company is be able to initiate your Employment Based green card filing at the same time as the H-1B filing. Additionally, the priority date for citizens from the UAE in the EB2 preference category is current; however, the priority date for citizens from the UAE in the EB3 preference category is backlogged to November 22, 2005. Accordingly, if you are eligible to file in the EB2 preference category, you should be able to file the I-140 and I-485 petitions concurrently and should receive your GC according to the processing times listed on the USCIS website.

Question #5 – Temporary Work Visa – H2B Nonimmigrant Visa
How many H-2B nonimmigrant visas remain under the 2nd half of FY2011? Under the 1st half of FY2012?

Answer #5
As of 8/12/11, USCIS receipted 30,810 petitions toward the 33,000 H-2B cap amount for the second half of the fiscal year (FY) 2011 (April 1 - September 30). This count includes 29,736 approved and 1,074 pending petitions.

As of 08/12/11, USCIS receipted 3,260 petitions toward the 33,000 H-2B cap amount for the first half of Fiscal Year (FY) 2012, (October 1 - March 31). This count includes 2,516 approved petitions and 744 pending petitions.

Question #6 – Dependent H4 Nonimmigrant Visa
Will my spouse automatically be shifted from F2 to H4 once I receive my approved H1B or do I need to process her case separately?

Answer #6
In this situation, your spouse’s status will not automatically be converted to H4 status, she must file a Form I-539 (Application to Extend/Change Nonimmigrant Status), along with your I-129 visa petition requesting a change of status from F2 to H4. Her case will not need to be processed separately; it can be prepared and filed along with your H-1B visa petition. If you have already filed your H-1B petition, you will have to file her I-539 (H4) petition separately.

Question #7 – Employment Based Immigration – Green Card
It seems like it’s taking a lot longer to conduct recruitment prior to filing the Labor application, what’s the issue?

Answer #7
There are two known reasons for the delay:

(1) As of January 1, 2010 the Department of Labor (DOL) federalized the process for obtaining Prevailing wage requests, which is the first step in the Labor process before recruitment can be conducted. We normally could obtain a prevailing wage request directly from the specific state workforce agency within a few days to a week. In addition to federalizing the process, the DOL made the process for obtaining the prevailing wages by electronic means as well as by requesting a prevailing wage through the U.S .mail. After the centralization of this process, it takes approximately 45-60 days to obtain a prevailing wage determination from the DOL. The determinations are issued on a first come, first serve basis.

(2) Currently, the OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule was published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. They hope to comply with the court order before October 1, 2011.

Question #8 – Family Based Immigration: Marriage – K1 Fiancé Visa
My son is a U.S. Citizen and is engaged to marry his British fiancé. Both have known one another for over nine years and have been engaged for six months. Can my son sponsor his fiancé? What needs to be done?

Answer #8
U.S. Citizens who are engaged to be married to a foreign national may petition the USCIS on behalf of their fiancé by way of the K-1 visa. To be eligible for this visa: (1) you must be legally able to marry; (2) the marriage must be a bona fide marriage with good intent; (3) you must be willing to marry within 90 days of the fiancé entering the United States; and (4) you must have met within two years of filing for the visa. Your son should first file a Petition for Alien Fiancé (Form I-130) with the USCIS. Once the petition is approved, the USCIS will forward the approved petition to the appropriate consulate to interview the applicant. Once the applicant attends the consular interview and is approved for the visa, she may travel to the United States to marry your son. A petition for K-1 status is valid for four months from the date of USCIS action, and may only be revalidated by the consular officer.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
This is my first time filing for H1B; I just graduated from U.S. University few months ago. My approval notice states that the Consulate has been notified and that I need to appear there to obtain H-1B visa. I thought the approval notice I received was the H-1B visa. What to do?

Answer #9
Before you can commence work with your petitioning employer, an I-9 (Employment Eligibility Verification Form) will need to be prepared and an I-9 requires evidence of a valid and current I-94 (Arrival and Departure Record). If an I-94 has NOT been issued with your approval notice, you must obtain a valid and current I-94. Since you are already in the United States you will need to go back to your home country and obtain an H4 visa and I-94. Or as noted in the Approval Notice, you can file a new H4 petition to seek to change or extend your status based on this petition, if a request was not made or was made and you believe it was improperly or incorrectly denied.

Question #10 – Employment Based Immigration – Green Card
I know there are quite a few GC cases pending and USCIS can only work on cases up to available VISA numbers and once the numbers are consumed, then it could go back with the next VISA bulletin. I think we can call the USCIS and provide details of our case so that based on first come first call; they would process and issue the GC faster.

Answer #10
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card. However, your attorney may contact the USCIS via email on your behalf if your I-485 application was filed through the Texas Service Center (TSC). The attorney may send an email to a specific email address to inform the Service Center that their client’s priority date is current. The “streamline” process was created to provide a mechanism for American Immigration Lawyer Association (AILA) members to facilitate TSC processes relating to the identification of EB I-485 applications.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, September 2nd, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

The CO denied the application stating that the journal used to advertise the position was not a recognized journal on websites and does not qualify as a professional journal. The Employer accordingly made a request for review of the denial stating that it fulfilled its obligation to advertise as indicated in the regulations and that the magazine, Computer, is a recognized professional journal. In its request for review the Employer included six pages of information from the IEEE website, which states that “for more than 40 years, developers, researchers, and managers have relied upon Computer for timely, peer-reviewed information about research, trends, best practices, and changes in the profession.” The CO forwarded the case directly to BALCA as a request for reconsideration was not made by the Employer.

PERM regulations 20 C.F.R. § 656.17(e)(1)(i)(B) and 656.17(e)(2)(ii) control and provide: sponsoring employers are normally required to attest 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 worker likely to apply for the job opportunity. However, an exception under 20 CFR § 656.17(e)(1)(B)(4) provides that if the job requires experience and an advanced degree and a professional journal would normally be used to advertise the job opportunity, the employer may substitute one of the Sunday advertisements for an ad in the professional journal most likely to bring responses from able, willing, qualified and available U.S. workers.

In the instant case, because the Employer did not initially make a request for reconsideration from the CO, BALCA was limited by 20 CFR § 656.27(c) and had to analyze the record based only on the evidence upon which the CO’s denial was made. Therefore, the six page document provided by the Employer could not be reviewed by BALCA. The Board was forced to affirm the denial even though they believed that the CO was arguably incorrect in his determination that Computer magazine was not a qualifying professional journal.

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

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

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

Our next “Q & A Forum” will take place this Friday, August 19th, 2011. Act now and submit your questions!

THANK YOU!

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

AILA has received a report that the NPWC is now sending out the following revised message regarding prevailing wage determinations:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.

Q: How long will the suspension of prevailing wage determinations last?
This is unclear. In the rule published on August 1, DOL indicated that while they will be able to reissue all of the required H-2B wage determinations before October 1, they also stated that DOL could not reissue all 4,000 required H-2B wage determinations before August 31, 2011. DOL has not issued any estimate on when they will resume processing prevailing wages.

Q: Is there any way to expedite a prevailing wage request?
DOL’s policy is that they will not expedite, and applications will be handled on a first-in, first-out basis.

Q: What is AILA liaison doing about the PWD delays?
AILA liaison has been in communication with DOL for the past several weeks about the prevailing wage delays (as well as other problems related to the new SOC codes introduced on July 1), and has forwarded specific requests for guidance to DOL. AILA has also asked that DOL immediately resume processing all prevailing wage requests, as suspension of prevailing wage determinations prevents employers from filing any PERM applications. DOL will be holding a call with AILA liaison and other stakeholders next week on prevailing wages, and we hope that DOL will be able to provide some estimate on PWD processing times, as well as whether any relief may be available for PERM cases that must be filed due to AC-21 requirements, expiring recruitment, or other reasons.

AILA is continuing to follow up with DOL to obtain additional information on the extent and duration of the prevailing wage delays and will post new information as soon as it becomes available.

Source of Information: AILA InfoNet Doc. No. 11072571

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

A selection was not made for Section M-1, which concerns whether or not the application was completed by the Employer. The CO denied certification citing the omission of a response for Section M-1. The Employer requested reconsideration or review of the denial and submitted an amended form. The CO did not reconsider its decision and the case was forwarded to BALCA on April 30, 2010.

PERM regulation 20 C.F.R. § 656.17(a) provides that incomplete applications will be denied. Further PERM regulation 20 C.F.R. § 656.11(b) provides that once an application is filed, requests for modifications to the application will not be accepted.

In the instant case, the facts as presented are similar to those found in a 2010 BALCA decision, Gunnels, 2010-PER-626 (November 16, 2010) where an Employer had neglected to check the box in Section M-1, but similarly provided a preparer’s name and signature, thereby signifying that someone other than the Employer had filled out the application. In Gunnels, the Employer made a request for reconsideration, but titled it “Request for Review”. In that decision, the BALCA panel determined that the CO abused its discretion and elevated form over substance in refusing to reconsider the denial. Here, the Employer merely neglected to check a box in M-1, but provided the preparer’s name and signature. Whether the CO abused his discretion depends upon whether he denied the Employer the opportunity to be heard on its legal argument.

Accordingly, the Board remanded to provide the CO the opportunity to reconsider the issue.

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

The Employer listed the minimum requirements as a Bachelors degree plus 5 years of experience in the position offered, or in the alternative, a Masters degree plus 1 year of experience in the job offered. The prevailing wage for the position listed in the application was $34.67 per hour. After receiving the Employer’s Application, the CO issued an Audit Notification. The CO denied certification citing that the PWD listed on the application was different from that provided in the Audit response. The audit response provided a PWD of $46.16 per hour. The Employer requested reconsideration and provided the PWD consistent with the wage listed on the labor application. The $34.67 per hour wage was based upon a separate PWD containing the primary requirements of Bachelors degree plus 5 years experience; and the $46.16 per hour wage was based upon another PWD containing the alternative requirements of a Masters degree plus 1 year experience. The CO denied reconsideration providing that the PWD submitted in the audit response did not match the prevailing wage listed in the labor application. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on August 3, 2010.

PERM regulation 20 C.F.R. § 656.1(a)(2) controls and provides that labor certification can only be granted if the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers who are similarly employed.

In the instant case, the facts present a clear example of how certification of the foreign worker could have an adverse effect on the wages of U.S. workers. The foreign worker has a Bachelors degree plus 5 years of experience and ought to be paid the amount that similarly situated U.S. employees earn in this position in the same area of intended employment, $46.16 per hour. Here, employment of the foreign worker could have an adverse effect on the wages of U.S. workers similarly employed that have a Bachelors degree plus 5 years of experience, since the Employer is only offering $34.67 per hour for this position. Accordingly, the proper PWD in such a situation is not the PWD that matches the “primary” or “alternative” job requirements; rather, the proper PWD is the higher of the two PWDs.

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

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

Question #1 – Employment Based Immigration – Green Card (Biometrics)
I went for ASC fingerprint appointment with my wife. She received code 2 biometrics and I received code 3 biometrics. What do these codes mean?

Answer #1
In order to inform the ASC what data they need the USCIS places a code in the upper right corner of the appointment notice.
Code 1 = Ten (10) fingerprints ONLY
Code 2 = Index fingerprint, Photo and Signature
Code 3 = Ten (10) fingerprints, Index fingerprint, Photo and Signature

Question #2 – Temporary Travel as a Non-Immigrant
For how long can a person stay in US on a Business Visa (B1/B2)?

Answer #2
It depends, normally for a period of 6 months; however, whatever date the Customs and Border Patrol (CBP) stamp on your I-94 card is the length of time you are eligible to remain in the U.S. lawfully.

Question #3 – Employment Based Immigration – Green Card (Biometrics)
My priority date is current – waiting on issuance of GC. Just received second biometrics appointment notice, as first was received back in 2007. Do I have to attend the second appointment?

Answer #3
Yes, you should appear for the fingerprint appointment. If your fingerprints were taken over 15 months ago, they have expired and the USCIS requires a new set in order to continue with the processing of your AOS petition.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #4
As of July 29, 2011, there were approximately 42,300 H-1B Regular CAP subject nonimmigrant visas remaining and 6,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #5 – Employment Based Immigration – Green Card (Biometrics)
Can I appear for the biometrics before the date printed on the notice which is Aug 18? Few of my friends have managed to get it done much before the date printed on the notice so I wanted to ask you if its okay to take a chance?

Answer #5
There are procedures and policies set in place by the USCIS so that petitions are adjudicated and processes are completed in a timely manner. The USCIS has scheduled the appointment for the date listed due to their tremendous workload at the present time. We recommend that you attend the biometrics as scheduled. Please be aware that the USCIS has the discretion to turn you away if you do attempt to have your fingerprints taken outside of the time listed on your appointment notice.

Question #6 – Temporary Work Visas – H-1B Nonimmigrant Visa
I recently got a new project in Redmond, Washington. I will be working at a client in Redmond. I have a certified LCA for my location in Boise, Idaho which was filed with my H1B petition. Does my employer need to file a new labor for Redmond, WA? If so can you guide me and my employer in filing labor in a new state?

Answer #6
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA must be submitted to the Department of Labor (DOL), as well as an amended petition filed with the USCIS. In summary, since your location change would be considered a "material change" in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am in the process of transferring employers and I don’t know if I can get a hold of an ‘end client letter’. Can we submit my petition without the end client letter?

Answer #7
You may submit the case without the end client letter; however, you most likely will receive a request for additional evidence (RFE) asking for an end client letter, which will further delay the approval. The most important thing the USCIS wants to see when filing an H-1B petition for third party placement is the contractual placement of the beneficiary and the establishment of a bona fide employer-employee relationship. They want to make sure that the duties the employee will be engaged in at the third party client site are ‘specialty occupation’ duties, and the end client letter attests to that exact information. This was not always the case; however, now a days, there are a lot of companies that take advantage of the H-1B program and place applicants at third party sites and do not retain any employment relationship with them, so much so that the USCIS released a memo back in January of 2010 indicating the acceptable documents to establish the legitimacy of the third party placement. Therefore, in order to obtain an approval, you have to document the above information – ‘contractual placement’ of the applicant and that the ‘bona fide employer-employee relationship’ will continue to exist throughout the requested period.

Helpful Resources:
USCIS Memo - January 8, 2010
USCIS Q&A Guidance

Question #8 – Visa Bulletin
Where do I find the visa bulletin?

Answer #8
The Department of State's Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:
http://www.travel.state.gov/visa/bulletin/bulletin_1360.html.
To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address: listserv@calist.state.gov and in the message body type: Subscribe Visa-Bulletin First name/Last name (example: Subscribe Visa-Bulletin Sally Doe)

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
My last name has been omitted from form I-129 receipt notice. All my paperwork and G-28 had both my first and last name spelled correctly. Last Name omitted on I-129 receipt, what do I need to do now?

Answer #9
You will need to contact the USCIS National Customer Service number (1-800-375-5283) and speak with a Representative to request that the mistake be corrected, so that your I-129 Approval notice (Form I-797) will provide your first and last name.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
I need to renew my H-1B visa. I have my H-1B visa since 2003.I already filed for my green card. Currently, I'm at the last step waiting for I-485 approval. My I-140 has been approved. I have my EAD. I spoke with my employer, they are willing to sign the paperwork and renew my H-1B. However, they are not willing to pay for the attorney fee and filing fee. Will it be alright for me to pay all the fees (attorney fee + filing fee)?

Answer #10
Absolutely not. The legal fees for the preparation and filing of the H-1B nonimmigrant extension petition should be borne by the Employer. Additionally, the USCIS filing fees shall be borne by the Employer. The H-1B nonimmigrant visa program calls for sponsorship, meaning the Employer must “sponsor” you, meaning pay the necessary fees and support your employment in the U.S..

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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 19th, 2011!

Please remember to submit your questions/comments on our H1B Visa Lawyer Blog.

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

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

Our next “Q & A Forum” will take place this Friday, August 5th, 2011. Act now and submit your questions!

THANK YOU!

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

AILA members have reported receiving the following e-mail message from the DOL National Prevailing Wage Center (NPWC) in response to inquiries into the status of prevailing wage requests:

Thank you for your inquiry.

Thank You, NPWC-#####

The June 15, 2011 court order stems from the August 30, 2010 decision in CATA v. Solis, where the district court ordered DOL to promulgate new H-2B prevailing wage regulations (AILA Doc. Nos. 101061580 and 10100169). AILA has contacted DOL for additional information on steps it is taking to comply with the court order, including how long it will take to reissue the H-2B wage determinations, and the short-/long-term impact of the order on prevailing wage processing times.

Source of Information: AILA InfoNet Doc. No. 11072571

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

Question #1 – Employment Based Immigration – Green Card
My employer appealed my denied labor to BALCA. My employer just got notice that my appeal has been docketed. When will I get a decision?

Answer #1
According to the United States Department of Labor website, it is approximately taking up to two (2) years for a case to be reviewed by BALCA from the date of filing the appeal.

Question #2 – Temporary Travel as a Non-Immigrant
I have an H1B visa stamped on my passport, which expires in Feb. 2012. I am planning to travel outside of the country in Sept. The agency where I work has applied for Adjustment of Status and filed an I-131 form, but I don't have the documents to travel. Can I travel? without this documentation and re-enter just with my H1B visa? Thank you!

Answer #2
Yes, you may travel on your H-1B visa, IF and ONLY IF you are presently still working for your H-1B employer. If so, you may use the H-1B visa stamp and re-enter the U.S. as an H-1B nonimmigrant and resume employment with your H-1B employer. However, you should carry with you a copy of your entire approved petition, along with an updated employment verification letter, most recent paystubs, employment agreement, just to be safe. If not, you must wait for the Advance Parole document to be approved before you may exit the country and attempt to re-enter.

Question #3 – Employment Based Immigration – Green Card
I filed for AOS based on employment. I moved six months after filing concurrently, I-140 and I-485 applications. My fingerprint notice was sent to my old address and then I received a notice in the mail that my I-485 had been denied due to abandonment. (An old friend lives at my old address). I subsequently re-filed the I-485. Some of my friends say this re-filing could have been avoided? How?

Answer #3
If you move while a case is pending with the USCIS, under Section 265 of the Immigration and Nationality Act (8 U.S.C. 1305), you must submit Form AR-11 within 10 days of your move to a specific address provided by the USCIS. If you fail to update your address with the USCIS, correspondence may continue to be sent to your old address and if you fail to respond within a timely manner, it could result in a denial or seriously affect the processing of your case. You could have avoided this situation by simply updating your mailing address online or by submitting Form AR-11 to the USCIS. As explained to you in the I-485 denial, failure to show at a scheduled fingerprint appointment without prior notice is considered abandonment of the application and may result in a denial. With the facts provided, it seems that by the time you received the fingerprint appointment notice and I-485 notice concerning denial, it was beyond the time required to submit a response in a timely manner. Accordingly, you re-filed your I-485 application. Next time, I would recommend you contact an experienced Immigration Attorney.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
I had gone for visa stamping and was issued 221(g) blue form. This is the reason given: "Your petition is not currently reflected in the PIMS database. Processing of your case will be suspended until we can verify your petition details." I am worried, is this normal?

Answer #4
It is a normal process and there is no reason to be alarmed, this is a standard procedure, so unfortunately, you must wait until your status/case can be confirmed and then you will receive your visa stamp. As stated below by the DOS, extensions of stay and change of status petitions take longer to verify through the database.

The U.S. Department of State (DOS) has instructed consular posts that approvals of H, L, O, P and Q visa petitions must be verified through the Petition Information Management Service (PIMS) before a nonimmigrant visa can be issued. PIMS is an electronic report generated by DOS’s Kentucky Consular Center that collects nonimmigrant visa petition approval information from USCIS. PIMS contains data on initial petition approvals and on L blanket petitions that were approved in 2004 or later. PIMS does not contain information on approvals of extension of stay or changes of status petitions. Consular officers adjudicating visa applications must consult PIMS to verify the approval of the underlying nonimmigrant visa petition. If the petition approval cannot be verified through PIMS, the officer must contact the Kentucky Consular Center, which in turn attempts to verify the approval through USCIS’s Computer Linked Applications Information Management System (CLAIMS).

DOS officials state that PIMS verification typically takes no more than 24 hours and that verification through CLAIMS typically takes two business days. Most cases involving initial nonimmigrant visa petitions are verified within these timeframes. However, they have received many reports of longer processing times for extension of stay and change of status cases. These cases must be verified with the assistance of the Kentucky Consular Center and can take longer to be processed. DOS has indicated that there are no current plans to include extension and change of status approval information in PIMS, which may result in significant delays for many applicants. Foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. How long the electronic process will take may vary from case to case. However, same-day and next-day visa issuance should not be expected.

Question #5 – Employment Based Immigration – Green Card
Please explain to me what “priority date becoming current” means?

Answer #5
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. If there is a backlog in the preference category in which you were filed in, this means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.

Question #6 – Employment Based Immigration – Green Card
My husband received his GC and his last name is spelled wrong on the card. How do I fix it?

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

Question #7 – Immigration Options for a Nanny
I am looking to hire a Nanny for my twin daughters who are 18 months. What options are available?

Answer #7
The options for hiring foreign-born nannies are very limited, but there are options. Options available: J-1 Visa, H-2B Visa, and Sponsorship of the Foreign Worker as a Skilled Worker under the EB3 Preference Category (Employment Based Immigrant Visa – Green Card). You should consider each option and the possible benefits and drawbacks of each option. Unfortunately, the EB3 preference category for Skilled Workers is oversubscribed, and accordingly, this option will take years and thus may not be the best available option considering your children may be 10 years old by the time an Immigrant Visa number becomes available for the sponsored Nanny.

Question #8 – Visa Bulletin
I always check the visa bulletin and the movement varies. One time, there was a 3 month movement and the next time it was just 22 days, then a month. Why is that so?

Answer #8
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is going on vacation from 08/15-09/10 and we are getting his h1b ext. in October and he has to go for visa in home country and he is requesting us to premium process his H1 ext. and wondering whether we can do it right now and can get approval before he leaves and he wants to appear for Visa with the new one. Please suggest whether we can do it right now or can we do it after he comes back from the vacation.

Answer #9
The answer to your question depends upon the specifics of your case; whether an end client will need to be obtained and if it can be obtained within the time period, whether forms and filing fees can be returned within a reasonable time; whether the LCA will be certified within the time frame given; etc. There are many circumstances that will need to be considered before a final decision is made on whether to prepare and file the extension now or wait until the return of the beneficiary to the U.S. We can file cases with the USCIS within 6 months of the current visa's expiration. Therefore, if his current H-1B expires on 10/2011, you could prepare and file the extension case now. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H-1B nonimmigrant visas remain under the CAP?

Answer #10
As of July 15, 2011, there were approximately 44,500 H-1B Regular CAP subject nonimmigrant visas remaining and 7,200 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, August 5th, 2011!

Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

Our next “Q & A Forum” will take place this Friday, July 22nd, 2011. Act now and submit your questions!

THANK YOU!

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

The following immigration-related bills were introduced into the House of Representatives and the Senate in June 2011 and summarized below by AILA (American Immigration Lawyers Association):

Senate Bills

Protect Our Workers from Exploitation and Retaliation (POWER) Act (S. 1195)
Introduced by Sen. Menendez (D-NJ) on 6/14/11
Summary: Amends the INA to exclude from the definition of "immigrant" under such Act a nonimmigrant alien who files a petition for status if the Secretary of Homeland Security (DHS) determines that the alien: (1) has suffered abuse or harm as a result of having been a victim of criminal activity; (2) has suffered substantial abuse or harm related to specified labor or employment violations related to a workplace claim (workplace violation); (3) is a victim of specified criminal activity and would suffer extreme hardship upon removal; (4) has suffered a workplace violation and would suffer extreme hardship upon removal; (5) has been helpful to a local judge, DHS, the Equal Employment Opportunity Commission (EEOC), the Department of Labor, or the National Labor Relations Board (NLRB) or to other authorities investigating, prosecuting, or seeking civil remedies for workplace violation; or (6) has filed, is a material witness in, or is likely to be helpful in the investigation of, a bona fide workplace claim and reasonably fears, has been threatened with, or has been the victim of, an action involving force, physical restraint, retaliation, or abuse of the immigration or other legal process by the employer in relation to acts underlying or related to the filing of the claim.
Authorizes the Secretary of DHS to permit certain aliens to remain temporarily in the United States. Sets forth protections in an enforcement action leading to a removal proceeding taken against certain aliens.

Accountability Through Electronic Verification Act (S. 1196)
Introduced by Sen. Grassley (R-IA) on 6/14/11
Summary: Expands the use of E-Verify.

Refugee Protection Act of 2011 (S. 1202)
Introduced by Sen. Leahy (D-VT) on 6/15/11
Summary: Amends the INA to reaffirm the United States' historic commitment to protecting refugees who are fleeing persecution or torture.

Border Tunnel Prevention Act of 2011 (S. 1236)
Introduced by Sen. Feinstein (D-CA) on 6/20/11
Summary: Deters the construction and use of border tunnels to reduce the trafficking of drugs and to prevent human smuggling across the Southwest Border.

S. 1258
Introduced by Sen. Menendez (D-NJ) on 6/22/11
Summary: Provides for comprehensive immigration reform.

Trafficking Victims Enhanced Protection Act of 2011 (S. 1259)
Introduced by Sen. Durbin (D-IL) on 6/22/11
Summary: Amends the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 to prohibit the provision of peacekeeping operations assistance to governments of countries that recruit and use child soldiers.

Trafficking Victims Protection Reauthorization Act of 2011 (S. 1301)
Introduced by Sen. Leahy (D-VT) on 6/29/11
Summary: Authorizes appropriations for fiscal years 2012 to 2015 for the Trafficking Victims Protection Act of 2000, to enhance measures to combat trafficking in person

House Bills

IDEA Act of 2011 (H.R. 2161)
Introduced by Rep. Lofgren (D-CA) on 6/14/11
Summary: Immigration Driving Entrepreneurship in America Act of 2011. Amends the INA to promote innovation, investment, and research in the United States.

Legal Workforce Act (H.R. 2164)
Introduced by Rep. Smith (R-TX) on 6/14/11
Summary: Amends the INA to make mandatory and permanent requirements relating to the use of an electronic employment eligibility verification system.

Protect Our Workers from Exploitation and Retaliation (POWER) Act (H.R. 2169)
Introduced by Rep. Chu (D-CA) on 6/14/11
Summary: Amends the INA to exclude from the definition of "immigrant" under such Act a nonimmigrant alien who files a petition for status if the Secretary of Homeland Security (DHS) determines that the alien: (1) has suffered abuse or harm as a result of having been a victim of criminal activity; (2) has suffered substantial abuse or harm related to specified labor or employment violations related to a workplace claim (workplace violation); (3) is a victim of specified criminal activity and would suffer extreme hardship upon removal; (4) has suffered a workplace violation and would suffer extreme hardship upon removal; (5) has been helpful to a local judge, DHS, the Equal Employment Opportunity Commission (EEOC), the Department of Labor, or the National Labor Relations Board (NLRB) or to other authorities investigating, prosecuting, or seeking civil remedies for workplace violation; or (6) has filed, is a material witness in, or is likely to be helpful in the investigation of, a bona fide workplace claim and reasonably fears, has been threatened with, or has been the victim of, an action involving force, physical restraint, retaliation, or abuse of the immigration or other legal process by the employer in relation to acts underlying or related to the filing of the claim. Authorizes the Secretary of DHS to permit certain aliens to remain temporarily in the United States. Sets forth protections in an enforcement action leading to a removal proceeding taken against certain aliens.

Refugee Protection Act of 2011 (H.R. 2185)
Introduced by Rep. Lofgren (D-CA) on 6/15/11
Summary: Amends the INA to reaffirm the United States' historic commitment to protecting refugees who are fleeing persecution or torture.

Deport Convicted Foreign Criminals Act (H.R. 2199)
Introduced by Rep. Poe (R-TX) on 6/15/11
Summary: Prohibits the issuance of certain visas to nationals of a country that denies or unreasonably delays the repatriation of a national ordered removed from the United States to such country.

Child Trafficking Victims Protection Act (H.R. 2235)
Introduced by Rep. Roybal-Allard (D-CA) on 6/16/11
Summary: Provides enhanced protections for vulnerable unaccompanied alien children and female detainees.

Border Tunnel Prevention Act of 2011 (H.R. 2264)
Introduced by Rep. Reyes (D-TX) on 6/21/11
Summary: Deters the construction and use of border tunnels to reduce the trafficking of drugs and to prevent human smuggling across the Southwest Border.

Torture Victims Relief Reauthorization Act of 2011 (H.R. 2404)
Introduced by Rep. Smith (R-NJ) on 6/28/11
Summary: Amends the Torture Victims Relief Act of 1998 to authorize appropriations to provide assistance for domestic and foreign programs and centers for the treatment of victims of torture.

Source:"AILA InfoNet Doc. No. 11070672 (posted Jul. 6, 2011)"

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

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

Our next “Q & A Forum” will take place this Friday, July 8th, 2011. Act now and submit your questions!

THANK YOU!

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

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

After receiving the Employer’s Application, the CO issued an Audit Notification. After receiving the audit response, the CO denied certification citing the fact that the journal the Employer used to advertised the position did not qualify as a professional journal and therefore did not satisfy the regulation. In the request for review, the Employer’s representative argued that the advertisement of the position in The Wall Street Journal did qualify as a professional journal. The case was forwarded to BALCA and the Employer filed a State of Intent to Proceed on June 24, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(B)(4) controls and it provides that if the position being offered requires experience and an advanced degree, a professional journal must be used to advertise the job.

In the instant case, the Employer tried to argue that The Wall Street Journal is a leading business journal; however BALCA found that it was in fact a widely read and respected newspaper – a newspaper and not a professional journal. Therefore, the Employer did not fulfill the requirement set by the PERM regulations to advertise in a professional journal.

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 for an alien worker for the position of “Software Engineer, Applications.”

An Audit Notification was issued by the CO requesting evidence of the Employer’s recruitment efforts. In the response to the audit submitted, the Employer included copies of Form ETA 9089 with original signatures, a statement of business necessity, a copy of the internal Job Posting, and other recruitment documents. The application was denied by the CO on the grounds that the Employer only completed 2 of the required 3 recruitment efforts for professional occupations. A request for review was submitted by the Employer who cited that in the CO’s “Reason for Denial” letter the wrong case number was used. A revised “Reason for Denial” letter was submitted by the CO with the correct case number included and it provided the reason for denial was the fact that the Employer did not submit its recruitment report. In another Request for Review, the Employer argued that the original response to the audit did include the recruitment documentation and recruitment report. The case was then forwarded to BALCA after the CO found the Employer did not overcome the original deficiencies in review of the case.

PERM regulation 20 C.F.R. § 656.17(g) controls and it provides that all employers must prepare a recruitment report, and in the event the CO notifies the employer that its application is to be audited, the employer must submit the report prior to a final determination. This report must also be signed by the employer or the employer’s representative and that individual must be the person who normally interviews or considers, on behalf of the employer, applicants for job opportunities.

In the instant case, the Employer failed to submit a recruitment report in response to the CO’s Audit Notification, the Employer’s response only included the statement, “There were no qualified U.S. workers who applied for this job opening.” Additionally, the statement was only signed by the Employer’s attorney, not the Employer. As a result of the Employer’s failure to sign the report, he did not attest to the results of its recruitment efforts.

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 for an alien worker for the position of “Cook.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THANK YOU!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THANK YOU!

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

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

In Section M-1 of Form 9089 where the employer is suppose to check whether they completed the application, the Employer failed to check either “yes” or “no”. The CO denied certification of the application on March 23, 2010 citing the fact that Section M-1 was not completed. The case was forwarded to BALCA after the Employer submitted a corrected copy of Form 9089, with Section M-1 complete. The Employer stated he was only seeking reconsideration of the case instead of a formal appeal in a letter to BALCA on August 2, 2010.

PERM regulation 20 C.F.R. § 656.11(b) controls and it provides that after July 16, 2007 no request for modifications to an application will be accepted.

In the instant case, the Employer did submit an amended and complete copy of Form 9089 after receiving the original denial from the CO. Under regulation however, modification to an application can no longer be used for reconsideration of an application. BALCA noted that the attorney for the Employer did fill out the certification below section M-1. The Board thereafter stated they have not, “made a finding whether failure to make a selection in Section M-1 is or is not material under the circumstances of this case.” BALCA declined to affirm or reverse the denial of the case, and instead sent it back to the CO for further consideration.

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

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

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

Our next “Q & A Forum” will take place this Friday, May 27th, 2011. Act now and submit your questions!

THANK YOU!

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

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

The Employer’s Application for Permanent Employment Certification was denied on August 28, 2007 by the CO who cited that in section H of Form ETA 9089, the job opportunity listed was not offered to the alien in section J of Form ETA 9089. In the Employer’s request for review, he stated it was a careless mistake to check the “no” box in Section H16 instead of the yes “box”, referencing the view of Matter of Health America. An additional request was submitted by the Employer on September 11, 2008. An audit was then issued and the Employer was requested to provide documentation of the job order placed with the State Workforce Agency (SWA), a copy of the job order issued by the SWA or other evidence to prove publication by the SWA. The documentation submitted by the Employer was found unsatisfactory to the CO in proving the SWA ran the job order and certification was denied on August 26, 2009. After the case was forwarded to BALCA, the Employer filed a Statement of Intent to Proceed on January 12, 2010.

PERM regulation 20 C.F.R. § 656.17(e)(1)(i)(A) controls and it provides that one of the ways an Employer must inform US workers about a job opportunity is by placing a job order with the SWA in the area of intended employment for 30 days.

In the instant case, the Employer did not provide any of the documentation specifically requested by the CO’s Audit Notification to verify the job order placed with the SWA serving the area of intended employment. The documents the Employer did provide were not sufficient enough to conclude that the job order was received and published by the SWA.

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 for an alien worker for the position of “Senior SAP Basis Technology Analyst.”

In the Employer’s Application for Permanent Employment Certification, three additional recruitment steps were listed because the job advertised was a professional position. The Employer’s ETA Form 9089 was audited on November 15, 2007. The CO requested recruitment documentation in the Audit Notification and the Employer responded to the audit with a screenshot of its internal job posting website. This screenshot included the dates on which the posting began and ended. Certification was denied by the CO on the grounds that documentation of the additional recruitment steps was insufficient as well as no employer notices or memorandum that specifically indentified incentives offered were submitted. A request for reconsideration was submitted by the Employer on June 18, 2009 who argued the screenshot qualified as sufficient evidence under the regulation. The Employer also sent information detailing the talent referral program in the request for reconsideration. The CO upheld his previous decision in denying certification even after the employer’s request for reconsideration and forwarded the case to BALCA on February 12, 2010. The CO filed his Statement of Position stating the Employer’s inability to submit documentation on time was a just cause for denial.

PERM regulation 20 C.F.R. § 656.24(g)(2)(i) ,(ii) controls and it provides that an Employer’s request for reconsideration may only include documentation that Employer originally did not have to opportunity to present or documentation the CO specifically requested.

In the instant case, the Employer had the opportunity to submit documentation of advertising and the specific incentives in the audit response but failed to do so. Additionally, evidence was submitted by the Employer in the request for reconsideration that was not previously submitted or asked for by the CO. Therefore the evidence cannot be used in the reconsideration of the case and the CO’s denial of certification was valid.

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

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

After accepting the Employer’s Application for Permanent Certification on October 26, 2007, the CO issued an Audit Notification which requested documentation of the Notice of Filing. The Employer responded to the Audit and submitted three pieces of evidence, but an actual copy of the Notice of Filing was not included. A status update of the case was requested by the Employer on June 9, 2008 since no reply had been given since the submission of the audit response. A second request for a status update was sent on November 25, 2008. The denial of the case was issued on December 9, 2008 by the CO who cited failure to produce a copy of the Notice of Filing as well as a difference in the wages listed on the Prevailing Wage Determination (PWD) and ETA Form 9089. The Employer submitted a request for review that included copies of the Notice of Filing and PWD. The Employer also stated in his request for review that the two documents were previously submitted in the audit response. Additionally, the Employer clarified a second PWD was acquired when it was realized the state department of labor had left the prevailing wage blank. However, the CO concluded the denial was valid on November 17, 2009. The CO argued that the Employer did not originally submit the Notice of Filing following the Audit Notification and the copy included in the request for review could not be considered as it was new evidence; however, the CO did accept the Employer’s explanation as to why the wage on the PWD and Form 9089 did not match. The case was then forwarded to BALCA and a Notice of Docketing was issued on December 7, 2009. In the appellate brief, the Employer argued that the Notice of Filing was included in the Audit response, suggesting it may have been lost. The Employer’s attorney also contested there was a copy of the Notice of Filing in her copy of the audit response.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that an application can be denied by the CO if the Employer fails to provide the requested documentation following an Audit Notification.

In the instant case, the Employer did respond to the Audit Notification in a timely manner but the documentation submitted did not include the Notice of Filing, which the Employer suggests may have been lost or accidently left out of the response. BALCA found that the Notice of Filing was fully intended to be included in the audit response and its absence was either due to mistake by the sender or recipient.

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

The Department of State has released its latest Visa Bulletin.

Click here to view the June 2011 Visa Bulletin.

The June 2011 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

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

*Section D explains that the determination of the June cut-off dates was delayed in order to monitor the demand by applicants to "upgrade" their status from Employment Third to Employment Second preference.

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

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

The CO issued an Audit Notification on October 2, 2007 requesting additional documentation in regards to the Employer’s recruitment efforts. The Employer responded to the audit by producing copies of its recruitment report and an ad listed on a job search website. Certification was denied by the CO because the recruitment done through the web site neglected to list the employer’s name, marking it as “confidential”. In a request for review, the Employer argued that the Employer’s full name and address were in fact listed on the ad at the following website http://hotjobs.yahoo.com. Though the Employer tried to prove the “advertisement could clearly be matched to the sponsored job opportunity,” the CO found the Employer did not overcome the original deficiencies of the application’s denial. The case was then forwarded to BALCA on November 19, 2009 and the Employer filed a Statement of Intent to Proceed. In the Statement of Position filed on January 22, 2010, the CO restated the reason for denial as the Employer’s identification as “confidential” on the website advertisement.

PERM regulation 20 C.F.R. § 656.17(f)(1) controls and it provides if an employer places an advertisement on a job search web site other than the employer’s, there are certain requirements such as including the “name of the employer.”

In the instant case, the Employer’s name was marked as “confidential” but if a searcher clicked on the links of the website they would be taken to the advertisement which did contain the employer’s name and address. BALCA found a potential employee would have been able to find the full information by clicking on the links available in the listing. Further, the web page without the Employer’s name was not the advertisement itself; the advertisement was a link that could be found on the web page that did include the Employer’s name.

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

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

After the Employer neglected to respond to an Audit Notification, the CO denied certification on February 27, 2007. The Employer then proceeded to argue that they had never received the Audit Notification and requested a review of the case. Once the CO re-issued the Audit Notification on May 27, 2008 the Employer did respond. Following a review of the Employer’s response, the CO denied certification on the grounds that the requirements for the job didn’t match on ETA Form 9089 and the order placed with the State Workforce Agency (SWA). The ETA Form 9089 listed a wage lower than that on the job order as well as the fact that the Employer did not submit two recent letters of recommendation to fulfill the requirement of the ad placed on Edjoin.com. In a request for review, the Employer argued the requirement difference on the forms occurred as a result of SWA’s mistake and the Edjoin.com ad shouldn’t have asked for two letters of recommendation. The case was then forwarded to BALCA on November 18, 2009 and a Notice of Docketing was issued. In a Statement of Position, the CO explained the case was denied because the SWA requirements are greater than those listed on ETA Form 9089 and the requirements on the website ad exceed those listed on the application as well.

PERM regulation 20 C.F.R. § 656.17(f)(6) controls and it provides: “advertisements must not contain any job requirements or duties which exceed the job requirements or duties listed on the ETA Form 9089.”

In the instant case, the SWA job order violated the above regulation because the requirements exceeded those stated on ETA Form 9089. Additionally, BALCA found it was the Employer’s responsibility to make sure the job order complies with the filing requirements even if the SWA made a mistake when entering the information.

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

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

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

Our next “Q & A Forum” will take place this Friday, May 13th, 2011. Act now and submit your questions!

THANK YOU!

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

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

On the Employer’s Application for Permanent Employment Certification, three additional types of recruitment were listed because the job advertised was a professional position. An Audit Notification was issued by the CO on October 5, 2007 requesting documentation on the Employer’s additional recruitment steps which included: listing the job on a job search website, using the employee referral program and listing the job with a private employment firm. The Employer responded to the Audit Notification on October 19, 2007 and submitted documentation which included: a copy of ETA Form 9098, a letter from HR stating the need for the job’s requirements, the posting of the available notice for the job (dated May 21, 2007 to June 1, 2007), the recruitment report, prevailing wage determination, copies of additional postings, list of recruitment agencies used, and a copy of the employee referral program. Certification was denied on February 11, 2008 by the CO who cited failure to provide, “adequate documentation of additional recruitment steps for professional occupations” as the reason for denial. The CO went on to say the Employer lacked evidence to support the company listing minimum requirements for the job that exceeded the SVP level as well as failed to demonstrate the recruitment efforts by the private employment firms. The Employer submitted a request for review on February 29, 2008 arguing the previous evidence submitted was adequate. Following the Employer’s request for review, the CO still denied certification. The CO accepted the Employer’s argument and additional documentation concerning the business necessity but did not accept the evidence to support the recruitment efforts by private employment firms. The case was then forwarded to BALCA and a Notice of Docketing was issued on October 8, 2009. In a Statement of Position, the CO defended the denial of certification, arguing sufficient documentation was not provided by the Employer to show individuals were given the opportunity to apply for the position or, “that any recruitment was done in a timely manner.”

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(F) controls and it provides that an employer may consult private employment firms as one of their additional recruitment steps for a professional position. The regulation also stipulates documentation must be provided that is “sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought.”

In the instant case, the Employer submitted additional evidence of the private employment firm’s recruitment efforts that was not in the original record; therefore the evidence could not be considered. BALCA found the CO properly denied certification and concluded that the Employer failed to comply with regulations.

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 for an alien worker for the position of “Cook.”

After accepting an application for Permanent Employment Certification on August 28, 2007, the CO issued a denial of the application citing nine different reasons. The Employer requested review of the case on September 14, 2007 and argued that although portions of the application had been “mistakenly overlooked,” he had complied with all the regulations. The letter of request for review from the Employer did not satisfy the CO and the case was forwarded to BALCA on January 6, 2010. The official denial from the CO stated the application was denied on the grounds that the alien did not sign Section L-2 of ETA Form 9098 and the offered wage was lower than the prevailing wage noted on ETA Form 9098. Following a Notice of Docketing issued by BALCA, the Employer filed an appellate brief arguing that they were unable to submit ETA 9098 with the alien’s signature because the alien lives in a remote area of Kosovo with limited mail service. Additionally, the Employer noted in the brief that the higher end of the salary range offered does coincide with the prevailing wage determination listed on ETA Form 9098.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that it is the Employer’s responsibility when applying for labor certification on behalf of an alien to submit a fully completed ETA Form 9098 which includes signatures from the employer, alien, and attorney/agent.

In the instant case, BALCA found the burden to be on the Employer as he failed to ensure the application was fully complete upon submission. Without signatures from all necessary parties, a visa petition cannot be processed and is therefore denied.

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

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

Question #1 – Employment Based Immigration – Green Card
How long is the processing of I-140? Will there still be chances of getting I-140 denied even if the worker is labor certified? If yes, what are the grounds?

Answer #1
The processing time for the I-140, Immigrant Petition for Alien Worker is approximately 4 – 6 months or longer depending upon the preference category. The processing times are published monthly by the USCIS. For all EB2 and EB3 filings, a certified labor application is required prior to submitting the I-140 Immigrant Petition. Therefore, the grounds for denial or receiving an RFE from the USCIS would be due to the beneficiary’s eligibility – experience and/or education; and/or the petitioner’s ability to pay – company financials.

Question #2 – Employment Based Immigration – Green Card
How long is the processing of I-485?

Answer #2
The processing time for the I-485, Application to Adjust Status to Permanent Resident is approximately 4-6 months or longer, depending upon the type of I-485 – Employment/ Family Based, etc. However, one must factor in that there are other individuals also waiting for the adjudication of their I-485 application who have earlier priority dates. The processing times are published monthly by the USCIS.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Are there any H1B nonimmigrant visas remaining?

Answer #3
As of April 22, 2011, there were approximately 57,000 H-1B Regular CAP subject nonimmigrant visas remaining and 14,100 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our www.h1bvisalawyerblog.com.

Question #4 – Family Based Immigration – Green Card
I have a U.S. citizen son. At what age can my son petition me for permanent residency? It used to be at age 18. Now it is 20. Is that true?

Answer #4
If the U.S. citizen child is 21 years of age or above, he/she can sponsor his/ her parents for immigration.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
Our district lawyer planned to convert my H-1B exempt to H-1B cap because it can guarantee me a slot and less RFE. My own lawyer said it is not necessary and I can still retain the H-1B exempt status. Which is more advantageous?

Answer #5
I really do not have enough information to provide you with a sufficient answer. When seeking Immigration benefits with the USCIS, nothing is guaranteed. Therefore, speaking of a less chance of obtaining an RFE is not guaranteed. The USCIS may issue an RFE regardless of whether the petition is CAP exempt or to be considered under the CAP. If the USCIS determines that they cannot make a decision based upon the initial evidence presented in the petition, they will request an RFE regardless. If I were you I would speak with your lawyer about this possible conversion, as it seems as though he knows your case and would know what is best given your current situation.

Question #6 – Student – F1 Visa Status
I have been working for a company on my OPT and now they wish to file for my H-1B. I also just recently got married to a U.S. Citizen. My OPT expires next month and I want to be able to continue to work. Which should I proceed forward with? The H-1B or the family based case?

Answer #6
If you do not file a petition prior to the expiration of your OPT, you will begin to accrue unlawful status and will need to leave the country. Therefore, if you have a valid job offer, you should file an H-1B petition under the FY2012 CAP, which will allow you to remain working after the expiration of your OPT up until the starting date of your H-1B, October 1, 2011.

Given the current time frames for processing of family based immigrant petitions, I do not believe that you would have sufficient time to file and then obtain an EAD to continue working. You may initiate the family based petition at any time.

Question #7 – Temporary Work Visa – L1A Intra-Company Transferee Visa
I am on valid L1A until end of next month. What do I need to show to get grant of approval for extension of L1A status?

Answer #7
You will need to fully document the following: (1) The U.S. company and the foreign company continue to be qualifying organizations; (2) The foreign company employed the applicant in an executive/managerial capacity for at least one year prior to the transfer to the U.S. Company; and (3) the U.S. Company will continue to employ the applicant in the executive/managerial capacity.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am in the process of transferring employers and I don’t know if I can get a hold of an ‘end client letter,’ as the project is being run exclusively through the vendor. Can we submit my petition without the end client letter?

Answer #8
You may submit the case without the end client letter; however, you most likely will receive a request for additional evidence (RFE) asking for an end client letter, which will further delay the approval. The most important thing the USCIS wants to see when filing an H-1B petition for third party placement is the contractual placement of the beneficiary and the establishment of a bona fide employer-employee relationship. They want to make sure that the duties the employee will be engaged in at the third party client site are ‘specialty occupation’ duties, and the end client letter attests to that exact information. This was not always the case; however, now a days, there are a lot of companies that take advantage of the H-1B program and place applicants at third party sites and do not retain any employment relationship with them, so much so that the USCIS released a memo back in January of 2010 indicating the acceptable documents to establish the legitimacy of the third party placement. Therefore, in order to obtain an approval, you have to document the above information – ‘contractual placement’ of the applicant and the ‘bona fide employer-employee relationship.’ In the past we have done so without the end client letter, by submitting a vendor verification letter, timesheets and progress sheets from the end client and so forth; however, the strongest most sound evidence is the ‘end client letter.’

Question #9 – Family Based Immigration – Green Card
I am a permanent resident, short of the five years needed for Citizenship. I would like to sponsor my parents for a Green Card; can you please let me know the process?

Answer #9
As a permanent resident, you are currently not able to sponsor your Parent’s Green Cards at this time. Once you apply and are granted Citizenship, then you may apply through the USCIS on behalf of your parents.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
Just need some advice. I have a concept for a truly authentic Indian restaurant and wish to sponsor a Chef under the H-1B visa program. Is this possible? What is required? I would be looking to sponsor him under the quota for next year, 2013, as I need this year in order to fully develop, carry out and incorporate my restaurant.

Answer #10
It is possible, if you have the requisite documentation and the concept of the restaurant is dependent upon the qualifications and expertise of the skilled Chef. We have filed numerous Executive Chef petitions through our firm and did not have trouble if the Chef is one who is highly noted for his work, has documentation to prove this, and the concept of the restaurant is focused on the Chef’s work.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, May 13, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

Our next “Q & A Forum” will take place this Friday, April 29th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – Employment Based Immigration – Green Card
I always check the visa bulletin and the movement varies. One time, there was a 3 month movement and the next time it was just 22 days, then a month. Why is that so?

Answer #1
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.

Question #2 – Employment Based Immigration – Green Card
My priority date (I am an Indian under EB-3) is September 2010, when do you think I will become current?

Answer #2
The State Department is currently processing applications that were filed back in 2002. Therefore, I believe you have quite a long wait ahead of you.

Question #3 – Employment Based Immigration – Green Card
After my priority date becomes current, when is my spouse able to get a working permit?

Answer #3
Your spouse will be able to get a working permit once the I-765, Employment Authorization application is approved with the USCIS. Once approved, your spouse will receive an EAD card and will be able to begin working. You will file the I-485 application along with the I-765 application and I-131, Advance Parole application if requested.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 is pending for approval and might come out this August 2011. The end of 6th is on June 20, 2012. If I am going to renew my visa beyond the 6th year and my I-140 gets approved, will I be counted towards the 65,000 cap or am I already guaranteed a slot because my perm has been filed?

Answer #4
You will be eligible for an extension beyond the 6th year due to the unavailability of visa numbers. Under AC21 law, where an H1B immigrant has an I-140 petition which has been approved under an employment based preference category and the AOS/485 is pending due to the unavailability of visa numbers, they are eligible for a three year extension to extend H-1B nonimmigrant visa status.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas are left?

Answer #5
As of April 7, 2011, there were approximately 59,100 H-1B Regular CAP subject nonimmigrant visas remaining and 15,500 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2012 H-1B Cap updates, please refer to our h1bvisalawyer blog.

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am planning on traveling to Canada in a few weeks for personal travel. I heard that when I attempt to come back to the US, Customs may change my I-94 expiration date. Is this true?

Answer #6
Although you may have a valid visa that was approved by the USCIS, the Customs and Border Patrol (CBP) Officers operate under their own set of rules. If you have legitimate/bona fide paperwork evidencing your employment and a valid work visa or other proof of your eligibility to be in the US when you attempt to cross the border from Canada to the United States, the CBP Officer should stamp the new I-94 with the expiration date of your current valid visa.

Question #7 –Employment Based Immigration, Green Card
I have an approved I-140 petition and wish to file my I-485. I am currently on H-1B and my wife, H4. She wants to be able to work so we would like to file 485 and obtain EAD documents. My lawyer says I must wait for my priority date to become current. Please explain to me what “priority date being current” means? I filed in EB2 from China.

Answer #7
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you were filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since June 2010, no RFE issued yet. Can I contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is it true?

Answer #8
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

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

Question #9 – Employment Based Immigration, Green Card
We filed a labor application and it was approved for an industrial engineer. We have yet to receive the certified labor in the mail and wish to move to the next step, filing the I-140 because the applicant can file I-485 concurrently. What can we do?

Answer #9
Generally, there are two options available to you; however, both are rather similar. The recommended route is to file the I-140 petition with a request that the United States Citizenship and Immigration Service (USCIS) obtain the certified Labor from the Department of Labor (DOL) itself. The other option is to write a letter to the DOL notifying them that the USCIS will be requesting the certified Labor from them directly for purposes of filing the I-140 petition.

Question #10 – Temporary Work Visa - H-2B Nonimmigrant Visa
What is the H-2B temporary visa? Does your firm work with these types of visas?

Answer #10
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer's need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S. For more specific information on the H2B nonimmigrant visa, please contact our office to schedule a telephone or in-person consultation.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 29th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

The Department of State has released its latest Visa Bulletin.

Click here to view the May 2011 Visa Bulletin.

The May 2011 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

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

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

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

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

Our next “Q & A Forum” will take place this Friday, April 15th, 2011. Act now and submit your questions!

THANK YOU!

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

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts down for budgetary reasons, all but "essential" government are furloughed and not allowed to work. So what does this mean for immigration agencies?

USCIS Update: USCIS has confirmed to AILA Liaison that it will be operating, except for E-Verify, if the government does shut down.

DOS Update: DOS confirmed to AILA Liaison that if there is a shutdown, the only visa processing will be for "life or death" emergencies. In prior budget-related shutdowns, DOS has continued to provide diplomatic visas and has been wont to say "a really, really important business meeting is not life or death."

CBP: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR: EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL Update: OFLC confirmed that it would cease processing all applications in the event of a government shutdown. DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries.

Other agencies will be added, and the above updated, as AILA obtains more information.

Information Source: "AILA InfoNet Doc. No. 11040730 (posted Apr. 8, 2011)"

The following information has been provided by AILA, the American Immigration Lawyers Association.

As Congress continues its budgetary deadlock, the possibility of a government shutdown looms larger by the minute. If Congress is unable to reach accord on Friday, the government will close at midnight, Saturday April 9.

In general, if the government shuts down for budgetary reasons, all but "essential" government are furloughed and not allowed to work. So what does this mean for immigration agencies?

USCIS (United States Citizenship and Immigration Services): A couple of shutdown threats back, a USCIS official stated at a stakeholder engagement that USCIS (other than the human touches on E-Verify) would not need to shut down, since all of the agency, other than E-Verify, is funded by fees. However, it is not clear that this is the case, and at least one local office has indicated that it is working on its shutdown plan. AILA will update this information as they get more information.

DOS (Department of State): If there is a shutdown, the result for DOS will likely be the same as it was in the 1996 government closing. Then, the only visa issuance being done was for some diplomats and for "life or death" situations. As DOS is wont to say "a really, really important business meeting is not life or death."

CBP (Customs and Border Patrol): Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual. The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border.

EOIR (Executive Office for Immigration Review): EOIR has been advised to "put its shutdown plans in place." As with other agencies, personnel who are not considered "essential" will be furloughed. EOIR has indicated that the detained docket would likely be considered an essential function and would therefore be able to continue in operation.

DOL (Department of Labor): DOL is making plans for a possible shutdown. If there is a shutdown, DOL personnel will not be available to respond to e-mail or other inquiries. AILA does not know at this point whether iCERT/PERM would continue to function. However, because the systems require funding to run, practitioners should assume that they would not be available.

Other agencies will be added, and the above updated, as AILA obtains more information.

Source of Information - AILA InfoNet Doc. No. 11040730 (posted Apr. 7, 2011)

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

Question #1 – Employment Based Immigration – Green Card
If my priority date is June 2008 under the EB-3 category and my H-1B visa will expire in October 2012 (using up my 6 years), should I move to a different company so I can re-file my green card application under EB-2? Or should I wait until I renew my H-1B until 2012 before moving?

Answer #1
If you have an approved I-140 and a valid offer of employment, you may move to the new company by filing an H-1B extension for three years based on the approved I-140; however, it can complicate your green card application. If you move, the previous employer could withdraw your approved I-140 and you would have to begin the Labor process from scratch and lose your priority date. This is an important factor that you will have to consider and discuss with your current employer.

Question #2 – Employment Based Immigration – Green Card
My husband is on H-1B is waiting for his I-485 (EB-3 Mexico with a July 11, 2008 priority date). I am currently on H4 and also have a degree in Economics, so I was wondering if I could apply for a TN visa without jeopardizing my chance to get a green card?

Answer #2
Has an I-485 application been filed on your behalf? By applying for a TN visa, you are not jeopardizing your chances, as long as you are eligible for the visa and have a sponsoring employer.

Question #3 – Employment Based Immigration – Advance Parole
We have advance parole expiring on Sep 29th, 2011. And we would like to renew our Advance parole within 120 days of expiration date. What is the earliest date that we may apply without being rejected?

Answer #3
You may apply on or after June 2, 2011.

Question #4 –Temporary Work Visas – H-1B Nonimmigrant Visa
I’d like to apply for an H-1B visa under the H-1B CAP. Is the H1B Visa Quota still available for the year 2011?

Answer #4
No, the H-1B FY2011 CAP opened on April 1, 2010 and the quota was reached in January of 2011. The H-1B FY2011 runs from October 1, 2010 until September 30, 2011. FY stands for Fiscal Year. 65,000 visas have already been allocated for FY2011.

The H-1B 2012 CAP opens today April 1, 2011 and will remain open until a sufficient amount of visa petitions are received to reach the quota. The H-1B FY2012 runs from October 1, 2011 until September 30, 2012.

Question #5 –Temporary Work Visas – H-1B Nonimmigrant Visa
Can your firm sponsor my H-1B or find a company to sponsor me? I am ready to come to the U.S. and work; I have a BS in Computer Science

Answer #5
We are a law firm that will help you prepare the paperwork (Forms and documents) for your H-1B non-immigrant petition once you find an employer willing to sponsor you for employment; however, we cannot find you H-1B sponsorship. In summary, once you have secured an H-1B sponsor (U.S. employer), we can then assist you with the process.

Question #6 – General
I am not sure what is going on with my pending I-140 application. I heard through the various immigration forums that I can contact USCIS and make a request for them to look further into my case and see why it is taking so long. Is this true? How do I do it? Does my employer need to contact them?

Answer #6
The USCIS National Customer Service Center, which can be reached at 1-800-375-5283, will initiate a service request when a petition is outside of the normal processing time if the request is made by the sponsoring Petitioner, the Applicant/Beneficiary, or an Authorized Representative or an Attorney for the Petitioner/Applicant. If making a service request to the Customer Service Center, please have the following information handy so that the Officer/Agent will be better able to assist you: your full name, your complete mailing address, your date of birth, your receipt number for the pending application/petition, the filing date of your pending application/petition, your priority date, your preference category, and possibly, the position indicated on your certified labor. If your case is outside of the normal processing time, the Officer/Agent will initiate a service request and will provide you with a timeframe for a response and a referral number in case you have to call back because no correspondence was issued within the timeframe suggested.

Question #7 – Employment Based Immigration – Advance Parole
We would like to file for renewal Advance Parole document. Please confirm if this is going to be an issue if we travel to India during June or August. During that time we will have current Advance parole (Exp August 28,2011) and future advance parole in pending status.

Answer #7
As long as you file the advance parole renewal prior to your departure and return prior to the expiration of your current AP document 8/28/2011, you should not encounter any issues.

Question #8 – Employment Based Immigration – Green Card: Biometrics
I believe the fingerprints that the USCIS have on file for my 485 application are old. Additionally, my wife has received her fingerprint appointment notice, should I just go and get my done with her, I haven’t got my notice yet. Should I take Info pass appointment to give them a new set of fingerprints?

Answer #8
USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.

Question #9 –Temporary Work Visas – H-1B Nonimmigrant Visa
If we sponsor an employee and pay the associated legal fees and USCIS filing fees, can we consider those payments in their employment review/raise evaluation in subsequent years? I am trying to treat all employees fairly, and it seems odd that the company is required to pay legal fees for one employee, but not another.

Answer #9
I understand your frustrations; however, the H-1B nonimmigrant program is a program designed to allow foreign professional workers to work temporarily in the United States to help boost the economy and keep U.S. businesses at the top in terms of work productivity, developing new products, etc. When you speak of using the associated legal fees when determining employment reviews/raise evaluations, it is not fair to the H-1B worker who has been sponsored by you for the sole purpose of working for your company to then take those fees and hold them against them. To my knowledge, it is unlawful and the Department of Labor (DOL) would not look favorably over this issue. It may seem odd that you are required to pay for the foreign worker's legal fees and associated filing fees, but that is just an aspect of the United States Citizenship and Immigration Service (USCIS) and DOL’s partnership in the H-1B nonimmigrant program. A job is a job and when performance reviews/raise evaluations are conducted, they should be based entirely on the ability/productivity and experience of the worker.

Question #10 – Family Based Immigration – Green Card – Marriage Based (K1)
What are the restrictions on a 'conditional green card”? Once my husband gets his GC, can he travel (internationally)?

Answer #10
Yes, he can travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, the USCIS wants to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after he applies to remove them, he will receive a GC valid for 10 years. Within 90 days of the two-year anniversary of obtaining conditional residence, you and your husband will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your husband will officially have Lawful Permanent Residence in the US.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, April 15th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

MVP "Immigration Q & A Forum" - This Friday, April 1st, 2011

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

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

Our next “Q & A Forum” will take place this Friday, April 1st, 2011. Act now and submit your questions!

THANK YOU!

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

MVP "Immigration Q & A Forum" - This Friday, March 18th, 2011

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

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

Our next “Q & A Forum” will take place this Friday, March 18th, 2011. Act now and submit your questions!

THANK YOU!

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

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

Question #1 - H-1B Nonimmigrant Visa
I am an H1-B Employee. My PERM and I-140 have been approved. Our company recently moved to a new office within the same Metro area (MSA), same county and just about 10 minutes from earlier office. Is a new LCA required?

Answer #1
Based on the information you have provided, as long as the position title and duties have not changed, you do not need to obtain a new LCA. However, the employer should notify the United States Citizenship and Immigration Service (USCIS) of the change in company address.

Question #2 – Employment Based Immigration - GC
Same facts as above. Is my PERM and I-140 still valid or do I need a new PERM and I-140?

Answer #2
The H-1B nonimmigrant visa program and employment based green card process are two entirely distinct processes so the paperwork used to obtain your H-1B (Form I-129, LCA, etc..) has no bearing on your PERM and approved I-140. However, the employer should notify the USCIS of the change in company address.

Question #3 – Employment Based Immigration - GC
I’ve been working at my current company for nearly 5 years and have a bachelor’s degree in EE. Can I change jobs within the company after the five year mark and be able to use the experience for my current job towards my labor certification and moving to an EB-2 category?

Answer #3
No, you cannot use the experience obtained in your current job to apply for another position within the same company. The experience needed for EB-2 classification must be prior experience.

Question #4 – Green Card
My fiancé is on an H1-B visa and is further along the path to getting a green card. I have my own H1-B visa but if he does get his green card before I get mine, should I be applying to be his spouse through the INS somehow in order to avoid the 3-5 year F2 priority date wait?

Answer #4
If you are only his fiancé, then you cannot be added to his I-140 Petition nor his I-485 Application, unless and until you get married, you cannot be added as a derivative. Once you are his spouse and he has obtained his green card, then yes, you will need to petition by filing Form I-130, Immigrant Petition for Alien Relative and obtain your green card through family-marriage based immigration (F2 classification).

Question #5 – H-1B Nonimmigrant Visa
If my 6 years of H1-B run out, can I transfer immediately to a TN visa (I’m Canadian), and avoid the 1 year waiting period in Canada before reapplying for another H1-B?

Answer #5
You can transfer to TN from H1-B but you are still going to have to wait one full year outside of the United States before being eligible to obtain a new H-1B nonimmigrant visa.

Question #6 – H-1B Nonimmigrant Visa
Can I file an H-1B petition if I am currently under optional practical training on an F-1 visa?

Answer #6
Yes, beginning on April 1, 2011 you are able to file an H-1B petition for the FY2012 with H-1B employment beginning October 1, 2011 through September 30, 2014.

Question #7 – H-1B Nonimmigrant Visa
If I was recently fired while in the country on an H-1B visa, can I stay in the country legally by obtaining a new job or filing for a change of status to a different category?

Answer #7
Yes, you could change jobs if the new employer agrees to sponsor your H1-B for a specialty occupation, this would be called an H-1B transfer. If you wanted to file for change of status there are three visas you could switch to: F-1 if you meet all eligibility requirements, L-2 if you are the spouse of an L-1 nonimmigrant visa holder or H-4 if you are the spouse of an H-1B nonimmigrant visa holder.

Question #8 – H-1B Nonimmigrant Visa
What sort of factors are used to determine the prevailing wage for a beneficiary on H1-B status?

Answer #8
Many factors are used to determine the prevailing wage for a beneficiary on H1-B status. The Department of Labor considers the average wage paid to those in the specialty occupation for the jurisdiction of employment, the level of skill/experience of the applicant, and other industry factors.

Question #9 – Marriage Based Immigration - GC
I am planning to marry my fiancé soon after entering the United Stated on a K-1 visa and I was wondering whether there were any restrictions or limitations on a K-1 visa that I should be aware of?

Answer #9
The main restriction on a K-1 visa is that you and your fiancé must be married with 90 days of him/her entering the country. Additionally, your fiancé would only be issued a two year conditional green card and would have to apply to remove the conditions on his/her permanent residency by proving the legitimacy of the marriage through Form I-751.

Question #10 – Employment Based Immigration - GC
How soon after I begin the employment green card process can my spouse begin working?

Answer #10
It depends upon several factors – where you are in the process, your country of citizenship/chargeability, your priority date and the processing times associated with the I-765, Application for Employment Authorization.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, March 18th, 2011! Please remember to submit your questions/comments on our h1bvisalawyer blog.

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

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

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

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

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

MVP "Immigration Q & A Forum" - This Friday, March 4th, 2011

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

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

Our next “Q & A Forum” will take place this Friday, March 4th, 2011. Act now and submit your questions!

THANK YOU!

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

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

The CO accepted the employer’s application for Permanent Employment Certification on behalf of the alien. The CO denied certification after issuing an audit citing the Employer’s Notice of Posting was only posted for nine consecutive business days because one of the days the NOF was posted was Columbus Day. Additionally, the certification was denied on the grounds that the Employer did not provide sufficient evidence of the employee referral program with incentives.

PERM regulation 20 C.F.R. § 656.10(d)(1)(ii) controls and it provides a “business day” is “any day that employees are working on the premises and can see the Notice of Filing.

In the instant case, the Employer had no opportunity to establish Columbus Day was a legitimate business day for the Employer. Additionally, BALCA found that the documentation for the employee referral program was sufficient, specifically; the Board found that (1) the employer had established the employee referral program with incentives prior to recruitment, (2)the program was ongoing during recruitment and (3) the job opening was advertised within the company to put employees on notice.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded to the CO, to provide the Employer with the opportunity to prove Columbus Day was a business day for the Employer.

MVP "Immigration Q & A Forum" - This Friday, February 18th, 2011

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

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

Our next “Q & A Forum” will take place this Friday, February 18th, 2011. Act now and submit your questions!

THANK YOU!

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

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

After certification was denied on May 25, 2007 because the company could not prove that it was a legitimate business, the Employer requested review of the case and an opportunity to submit evidence that it was a bona fide company. The Employer stated the notification of denial was not received until September 12, 2007and only after an email inquiry request had been sent about the case to the Atlanta Processing Center. The Employer asserted that there was no time to reply to the original denial letter and argued that the denial should be rescinded so that there was an opportunity to present evidence. The Employer did not respond to an Audit Notification issued by the CO on January 28, 2009 requesting documentation of recruitment efforts. After failing to respond to the Audit Notification, the CO denied certification on April 2, 2009. On April 14, 2009 the Employer argued the Audit Notification letter was never received and requested review but the CO did not grant the request. In the Employer’s statement of appeal to BALCA, the Employer argued that because there was no USPS tracking number attached to the Audit Notification there was no way of knowing whether the Audit Notification was delivered or received.

PERM regulation 20 C.F.R. § 656.20(b) controls and it provides that a “substantial failure by the employer to provide required documentation will result in that application being denied under § 656.24...”

In the instant case, the Employer did not respond to the CO’s Audit Notification by the specified date, which would normally constitute a denial of certification. However, BALCA believed it was possible the Postal Service made a mistake in delivering the Audit Notification and as a result the Employer could not submit its response. The Board’s decision is strictly limited to the facts of this case.

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

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

The Employer’s application was accepted for processing on May 2, 2007 but later denied by the CO who cited that the Employer could not prove the business was a bona fide entity. The Employer submitted evidence to show the business was bona fide. As a result, the CO issued an Audit Notification and requested documentation of the Employer’s recruitment procedures as well as a copy of the job order the Employer placed with the State Workforce Agency (SWA). The Employer’s response to the audit was filed but certification was again denied by the CO who stated the Employer submitted insufficient documentation for the SWA job order. The Employer asked for reconsideration and argued that the documentation submitted complied with the regulatory requirement. The Employer also noted a certified copy was unable to be obtained because prior to the audit, the records were purged after 18 months by the SWA. Still, the CO found the denial accurate citing it was the Employer’s duty and requirement to “retain documentation supporting the application for five years under the regulation.” The case was forwarded to BALCA. On appeal, the Employer argued that there are no current standards that specify what constitutes proof of a SWA job order.

PERM regulation 20 C.F.R. § 656.17(e)(2)(i) controls and it provides “the start and end dates of a job order entered on the application serve as documentation of placing the SWA job order.”

After reviewing the case, BALCA agreed with the Employer in that there are no specific regulations on “what type of documentation is sufficient enough to establish the job order was placed in compliance with the regulations.” Further, BALCA believes the CO did not have the authority to require the Employer to provide such concrete evidence of the job order. In this instant case, BALCA found the Employer did give sufficient documentation of the SWA job order.

Accordingly, the Board vacated the decision of the CO in denying labor certification and remanded to the CO to grant certification.

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

The Employer’s Application was originally accepted by the CO on August 22, 2007 on which the Employer had stated a bachelor’s degree and 60 months of related experience were required for the position. Also indicated were a yearly wage of $70,000 and a prevailing wage of $43,413 per year. An Audit Notification was issued by the CO requesting proof of business necessity as well as a copy of the NOF. The Employer’s response containing the NOF included a prevailing wage determination (PWD) of $43,413 per year, and the response included a statement justifying the business necessity for the stated minimum job requirements. Certification was denied by the CO on January 9, 2009. The wage listed on the NOF was lower than the wage offered to the alien by the Employer. After reviewing the case, the Employer argued that at the time of posting the NOF the alien was being paid a different amount and offered supporting documentation. The case was then forwarded to BALCA by the CO.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that an advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien. In the present case, the NOF listed a wage range of $50,000-$65,000 but when the application was filed by the Employer, the alien was being paid $70,000 per year. Therefore, the wage offered to the alien was “$70,000.00.”

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 for an alien worker for the position of “Applications Engineer.”

The Employer’s Application was accepted by the CO on October 10, 2007 and listed that the Employer had advertised on its website for the position from May 29, 2007 to July 19, 2007. An Audit Notification was issued by the CO. In the Employer’s response, extensive evidence of the website posting was given. However, the CO denied certification citing the job posting on the website was dated September 24, 2007-outside the date the Employer reported on ETA Form 9089. On, October 15, 2009 the Employer argued for reconsideration because the Vice President submitted an affidavit attesting to the fact that he posted the job opportunity on the website during the dates provided above. The Employer also argued that in light of the fact the date on the website print out was September 24, 2007, the advertisement was posted for at least one day within the 30 days prior to the date the application was submitted. The case was forwarded to BALCA.

PERM regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment efforts for a professional position can be a website positing which can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.

In the instant case, BALCA found the Employer’s audit response insufficient under the regulation. Although the letter from the Vice President was proof, it was not adequate evidence to persuade the CO and BALCA that the Vice President was the official within the employer’s organization responsible for the posting of such occupations on the company website.

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 for an alien worker for the position of “Production Planning/Scheduling Manager.”

The Employer listed the offered wage for the position as $67,000 per year and required a Master’s degree in Industrial Engineering plus six months of experience on the Application which was accepted by the CO on July 24, 2007. The CO requested the Employer’s Notice of Filing (NOF) when an Audit Notification was issued. The CO additionally requested that the Employer submit proof of business necessity. The Employer listed on the NOF an annual salary of $66,435 for the position in its response to the Audit Notification. The CO denied labor certification on December 19, 2008. Labor certification was denied because the wage the Employer listed on the NOF was less than yearly wage offered to the alien. The requirements for the position also surpassed the Specific Vocational Preparation (SVP) level assigned by O*Net and the Employer did not provide significant documentation in its response to prove the additional requirements were necessary. After reviewing the denial, the Employer argued the Office of Foreign Labor Certification (OFLC) gave the impression that the NOF didn’t have to include the wage offered to the alien, it was only necessary to include the prevailing wage. The Employer further argued the CO never specifically asked for proof of business necessity and as a result the Employer did not know to submit it. On February 17, 2010 the case was forwarded by the CO to BALCA.

PERM regulation 20 C.F.R. §656.17(f)(7) controls and it provides that when filing an application for permanent labor certification notification the advertisement must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

In the instant case, BALCA found the CO’s denial was appropriate as the Employer’s NOF contained a wage lower than the wage offered to the alien.

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 for an alien worker for the position of “Team Lead/Software Engineer.”

The Application was accepted by the CO on September 6, 2007. The Employer indicated on ETA Form 9089 a prevailing wage of $81,349 issued by the State Workforce Agency (SWA) with a determination date of July 15, 2007 to June 1, 2008. An Audit Notification was issued requesting either a copy of the original Prevailing Wage Determination (PWD) from the SWA or a copy of the request for the PWD. The response to the audit by the Employer contained a so-called duplicate copy of the PWD because the original was lost. The so-called duplicate copy of the PWD had a wage of $89,544 with a determination date from October 30, 2007 to June 30, 2008. The CO denied certification on April 9, 2009 citing a violation of 20 C.F.R. § 656.10(c)(1).The Employer argued the offered wage to the alien did in fact surpass that of the so-called duplicate PWD and the lost original PWD. The case was forwarded to BALCA by the CO on February 4, 2010. In the instant case, BALCA agreed that the CO was correct in denying certification based on the fact that the PWD submitted in response to the audit notification was entirely different than the one attested to on ETA Form 9089.

PERM regulations 20 C.F.R. § 656.10(f), 20 C.F.R. § 656.40(a), and 20 C.F.R. § 656.41(a) control and provide that when filing for an application for permanent alien labor certification, all documentation attested on the application must be kept for at least five years. Additionally, a PWD must be requested from the appropriate SWA and an employer who wishes to review a PWD must make the request within 30 days of its issuance. Here, the Employer submitted an entirely different PWD, with a new monetary amount and a new determination period in response to the audit; information not initially provided on ETA Form 9089.

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

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

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H-1B FY2011 CAP still open?

Answer #1
YES! As of January 14th, 2011 60,700 H-1B Regular CAP subject nonimmigrant visa petitions had been filed with the USCIS toward the 65,000 annual CAP. USCIS will continue to accept cap-subject petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Question #2 – Marriage Based Immigration –Green Card
I am marrying a United States citizen in a few weeks, do you know when I can expect to have my interview and eventually get my green card?

Answer #2
Once you have married and have submitted your paperwork to the USCIS, it is taking approximately 3-4 months nationwide to obtain an interview appointment. This is an estimate as all cases are not the same and the circumstances in one case may be different than in another. If there are any prior marriages, criminal charges, or other circumstances that could affect the case, processing may take even longer.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have been considering teaching for a while as a way to give back and was wondering being on H1-B, would I be able to hold a part-time/adjunct teaching position at a university, if given the opportunity?

Answer #3
You would be able to hold a part-time/adjunct teaching position at a university; however, the University must be willing to sponsor your H-1B visa. The University would have to go thru the normal process of preparing and filing the necessary forms and paying the necessary USCIS filing fees, if applicable, as well as paying all legal fees involved.

Question #4 – Temporary Work Visa – L1 Intra-company Transferee
What is the grace period on an L1A extension? I reside in California, my current L1A visa expires on 3/25/2011 and I’ve filed for an extension on 12/17/2010. I got a receipt for it.

Answer #4
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
I had gone for visa stamping and was issued 221(g) blue form. This is the reason given: "Your petition is not currently reflected in the PIMS database. Processing of your case will be suspended until we can verify your petition details." According to the visa officer, I should get my passport in 10 days. I am worried, is this normal?

Answer #5
It is a normal process and there is no reason to be alarmed, this is a standard procedure, so unfortunately, you must wait until your status/case can be confirmed and then you will receive your visa stamp. As stated below by the DOS, extensions of stay and change of status petitions take longer to verify through the database.

The U.S. Department of State (DOS) has instructed consular posts that approvals of H, L, O, P and Q visa petitions must be verified through the Petition Information Management Service (PIMS) before a nonimmigrant visa can be issued. PIMS is an electronic report generated by DOS’s Kentucky Consular Center that collects nonimmigrant visa petition approval information from USCIS. PIMS contains data on initial petition approvals and on L blanket petitions that were approved in 2004 or later. PIMS does not contain information on approvals of extension of stay or changes of status petitions. Consular officers adjudicating visa applications must consult PIMS to verify the approval of the underlying nonimmigrant visa petition. If the petition approval cannot be verified through PIMS, the officer must contact the Kentucky Consular Center, which in turn attempts to verify the approval through USCIS’s Computer Linked Applications Information Management System (CLAIMS). DOS officials state that PIMS verification typically takes no more than 24 hours and that verification through CLAIMS typically takes two business days. Most cases involving initial nonimmigrant visa petitions are verified within these timeframes. However, they have received many reports of longer processing times for extension of stay and change of status cases. These cases must be verified with the assistance of the Kentucky Consular Center and can take longer to be processed. DOS has indicated that there are no current plans to include extension and change of status approval information in PIMS, which may result in significant delays for many applicants. Foreign nationals who will be applying for nonimmigrant visas should expect longer processing times due to the new PIMS and CLAIMS verification requirement. How long the electronic process will take may vary from case to case. However, same-day and next-day visa issuance should not be expected.

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

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

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
The Processing Time Table indicates it takes about 2 months, as on 31/10/2010 update. So I wasn't sure what that 2 months meant, and above all it was last updated on 31/10/2010. Can you tell me why it is taking so long?

Answer #7
Although the USCIS processing times may state 2 months, you have to factor in that when it is posted, that data is already 45 days old. Also, due to the FY2011 H-1B CAP still being available, the USCIS is busy with attempting to adjudicate change of status petitions, extensions and transfers all within the same processing times. Although this explanation is not an excuse, I just want you to be aware of the background with the processing times for the H-1B nonimmigrant visa.

Question #8 – Employment Based Immigration – Green Card
My I-140 Immigrant petition has been approved. My next step is to apply to adjust status to permanent resident. What kind of documents do I need to have for AOS application?

Answer #8
In order to apply for AOS, your priority date needs to be current, once your priority date is current, you will able to file the Form I-485, Application to Adjust Status to Permanent Resident along with the Form I-765, Application for Employment Authorization and Form I-131, Application for Travel Document. There are numerous background documents that will need to be submitted along with your petition, including: a sealed medical examination from a civil surgeon in your area, birth certificates, copies of federal tax returns, bank statements, and an employment verification letter, among other documents.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
I've been working on this product that i want to launch, if all goes well, sometime this year. This will be an E-Commerce business. With regards to me being on H1-B, would I be able to start up my own small company?

Answer #9
As a temporary H-1B nonimmigrant worker, you are NOT ALLOWED to start up your own small company. There are other types of visas available if you are seriously interested in starting your own company, but you are not allowed to start up your own small company on your H-1B visa status. If you are interested in other possible options, please contact our office to speak with one of our experienced Immigration Attorneys.

Question #10 – Marriage Based Immigration –Green Card
What is a “Stokes” interview?

Answer #10
A “Stokes” interview is the last opportunity the USCIS provides for you and your spouse to prove the bona fides of your marriage. If the USCIS does not think that your marriage is legitimate, they will schedule a “Stokes” interview. The husband and wife are separately questioned by a USCIS Officer regarding their relationship history, daily interactions, relationship in general, presence on social networking websites, etc. The interview/questioning is recorded and an attorney is permitted to attend.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, February 4th, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog.

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

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available?

Answer #1
As of December 31st, there were approximately 7,700 H-1B Regular CAP subject nonimmigrant visas remaining. As of December 31, 2010 a sufficient number of Masters CAP cases have been received by the USCIS. USCIS will continue to accept cap-subject petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.

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

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

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I have exhausted my 6 years on H-1B visa and returned to my home country. I have been here for 180 days; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward immediately.

Answer #3
According to the regulations, once you have exhausted the 6 year limit on H-1B, you must return to your home country for one (1) year before you can petition again for an H-1B nonimmigrant visa.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
One of our employees is going on vacation from 02/03-03/10 and we are getting his h1b ext. in June and he has to go for visa in home country and he is requesting us to premium process his H1 ext. and wondering whether we can do it right now and can get approval before he leaves and he wants to appear for Visa with the new one. Please suggest whether we can do it right now or can we do it after he comes back from the vacation.

Answer #4
The answer to your question depends upon the specifics of your case; whether an end client will need to be obtained and if it can be obtained within the time period, whether forms and filing fees can be returned within a reasonable time; whether the LCA will be certified within the time frame given; etc. There are many circumstances that will need to be considered before a final decision is made on whether to prepare and file the extension now or wait until the return of the beneficiary to the U.S. We can file cases with the USCIS within 6 months of the current visa's expiration. Therefore, if his current H-1B expires on 6/2011, you could prepare and file the extension case now. Knowing the above information, please consider all of the circumstances of the case before you make a decision to proceed forward.

Question #5 – Marriage Based Immigration – Conditional Permanent Resident
I would like to know the procedure for removing conditions. When can I file? I’m married to a U.S. Citizen and my conditional green card is set to expire in May 2011.

Answer #5
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

Question #6 – Temporary Work Visas – H-1B Nonimmigrant Visa
One of our employees is nearing his 6th year on H-1B visa status, and he has an approved I-140 in the EB2 category filed by a different company. Can we use that approved I-140 to get a three year extension with our company?

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

Question #7 – Employment Based Immigration – Green Card: Biometrics
The fingerprints that the USCIS have on file are set to expire soon. Should I take Info pass appointment to give them a new set of fingerprints?

Answer #7
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.

Question #8 – Employment Based Immigration – Green Card
My husband received his GC and his DOB is wrong on the card. How do I fix this?

Answer #8
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can you sponsor my H-1B or find a company to sponsor me? I am ready to come to the U.S. and work; I have BS in Computer Science and three year experience in computer programming. What’s the process?

Answer #9
We are a law firm that will assist in the preparation of the paperwork (Forms and documents) for your H-1B non-immigrant petition once you find an employer willing to sponsor you for employment; however, we cannot find you H-1B sponsorship. In summary, once you have secured an H-1B sponsor (U.S. employer), we can then assist in the process.

The normal process for H-1B sponsorship starts when you or your employer contacts our office to initiate the process. You or your employer would contact our office, sign a legal agreement detailing the legal fees associated with the preparation and filing of the H-1B visa petition, you would then complete the H-1B questionnaire, and send all requested background documents to our office to begin the process. Once the legal payment, the completed questionnaire and background docs have been received in our office, we would be able to begin preparing your case. Once your forms have been prepared and thoroughly reviewed, we email the final documents to your sponsoring employer for their review and signatures. These forms must then be returned to our office with the requisite USCIS filing fees, and will be filed on your behalf with the USCIS. Upon receipt of the H-1B petition, the USCIS will issue a receipt notice containing a specific number which will allow you to monitor your case while it is being processed.

Question #10 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year. When is the earliest that I can file my renewal petitions?

Answer #10
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2011, the earliest you can file is on or after June 19, 2011.

According to the USCIS, you can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS could issue an RFE requesting your current AP document before issuing a new AP document.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, January 21st, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog.

MVP "Q & A Forum" - This Friday, January 7th, 2011

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

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

Our next “Q & A Forum” will take place this Friday, January 7th, 2011. Act now and submit your questions!

THANK YOU!

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

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Computer Software Engineer."
The Employer’s Labor Application was accepted by the CO on July 26, 2007, where the prevailing wage was indicated as $50.88 per hour. The Employer also gave evidence of posting for the position on a job search website from February 4, 2007 to February 21, 2007. An audit was issued on September 19, 2007 by the CO requesting additional recruitment documentation. The Employer submitted evidence of its ad posting on monster.com for 17 days, which listed the salary as 50 to 70 dollars per year. Since the wage listed on the ad was lower than that listed on the prevailing wage document, the CO denied certification. On December 12, 2007, the Employer asked for a re-evaluation citing the fact that they submitted the wrong job advertisement, the correct one was an ad placed on NJ.com. On the NJ.com advertisement for the job there was no indication of wage. Again the CO denied certification citing 20 C.F.R. § 656.24(g) which states a review can only include documentation requested from a CO or documentation that that Employer originally did not have the opportunity to present.

PERM regulation 20 C.F.R. § 656.24(g)(2) controls and it provides a request for reconsideration may only include “documentation actually received from the employer in response to a request from the CO” or “documentation that the employer did not previously have the opportunity to present to the CO.”

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

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

The CO accepted the Employer’s Application for Permanent Employment Certification which stated the job required a bachelor’s degree in Pharmacy and a “Valid Florida Pharmacist license or ability to obtain a license” for processing on December 31, 2009. To show fulfillment of the advertising and recruitment requirements, the Employer gave evidence of postings in two papers. Citing the ad print in Pharmacy Today, a professional journal, the CO said it did not qualify as the required second advertisement because the job listed didn’t require experience or an advance degree and therefore denied certification. After the Employer reviewed the denial letter from the CO, the Employer asked that the advertisement in Pharmacy Today be allowed in light of the fact that the standards for the job were changed to 6 years in the PharmD program as well as experience in the field. Further, the Employer argued that advertising in that journal offered a larger pool of more highly skilled applicants needed for the job and that finding a qualified person for the job is highly difficult. In the appeal, the CO stuck to the denial of the application stating that even though Pharmacy job requirements have increased, CVS is not asking for someone with those requirements to fill the job. On the other hand in the appeal, the employer argues it only advertised that the job required a bachelor’s degree in order to “recruit based on the largest applicant pool,” which would include those individuals who were not affected by the increase in requirements in 2000 because of a grandfather clause. The Employer goes on to argue that states have different licensure standards for pharmacists before that licensure can be awarded.

PERM regulation 20 C.F.R. 656.17(e)(l)(i)(B)(4) controls and it provides that an employer may advertise in a professional journal in place of a Sunday advertisement if the job in question requires “experience and an advanced degree.”

In the instant case, the CO denied certification on the grounds that the Employer placed an ad in a professional journal even though the application only stated the requirements for the job included a Bachelor’s degree and no experience. After reviewing the case BALCA determined the CO dismissed the Employer’s argument on appeal and simply forwarded it to the Board. Further citing a previous decision, 2010-PER-628, BALCA decided the Employer was not given the right to argue the case before the CO, violating due process. The case was returned for further review and to allow the Employer to fully present his argument dismissed by the CO.
Accordingly, the Board vacated the decision of the CO in denying labor certification.

The Board of Alien Labor Certification Appeals (BALCA) recently granted an Employer reconsideration for a case in which the CO originally denied labor certification (LC) for an alien worker for the position of “Care Taker-Ranch Hand.”

After the Employer filed an LC on June 5, 2009 on behalf of an alien worker, the CO denied certification on February 23, 2010 citing that section M-1, which asks whether the form was completed by the employer, was incomplete. If an individual answers “no” then they must fill out Section M-2 to M-5 which ask questions on whether the information filled out on the application is true and correct to the best of their knowledge. Though neither “yes” nor “no” was checked in Section M-1, at the bottom of Section M-2 to M-5 the Customer Service Coordinator, Collette Reed, signed her name indicating that she prepared the documents. During a request for review on March 18, 2010 the Employer stated the failure to check “yes” or “no” in Section M-1 was a accidental error and submitted a completed form. The appeal was forwarded to the Board without review by the CO. The Employer stated during the appeal that they only wanted reconsideration of the case by the CO, not an appeal to the Board. The CO did not specify how he had chosen to handle the Employer’s request for review; the case was forwarded to the Board without a ruling. The Board tried to determine whether the CO abused his discretion when deciding not to reconsider the denial of the certification. After evaluating previous cases and precedents, BALCA found the Employment and Training Administration (ETA) failed to, “create a workable system to apply in every situation that can arise during the PERM filing process.”

In the instant case, the Board reviewed the Employer’s original request, “Request for Review of Denial of Form ETA 9098” and found that the Employer specifically meant for the CO to reconsider the decision, it was not intended for BALCA review. Further, the Board found that the CO did abuse his discretion by sending the request for review off to BALCA instead of reviewing it personally.

Accordingly, the Board granted the Employer’s request to send the case back for reconsideration by the CO.

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

Question #1 – Temporary Work Visas – H-1B & L1A/L1B Nonimmigrant Visas
Does the new public law apply to transfer and extension petitions for nonimmigrant workers?

Answer #1
Under Public law 111-230, petitioners subject to the new fees must submit the fee with an H-1B or L-1 petition filed (1) initially to grant an alien nonimmigrant status (initial cases); or (2) to obtain authorization for an alien having such status to change employers (transfer cases). Therefore, the fee must be submitted with any initial H-1B filings and any transfers, but extensions with the same employer do not require the new fee.

Question #2 – Employment Based Immigration – Green Card
My spouse and child have received their Green Cards but I have not received mine. I filed for our GCs through my employer. Is there a problem with the processing of my case? Could my case have been denied?

Answer #2
Based on the information provided, it seems like there may just be an issue with the production/issuance/mailing of your Green Card. Your spouse and child would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and child are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 60 days from the date your spouse and children received their Green Cards by calling 1-800-375-5283.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available? Can I still file?

Answer #3
As of December 10th, there were approximately 12,600 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 900 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.

Question #4 –Temporary Work Visa - H-2B Nonimmigrant Visa
What is the H-2B temporary visa? Does your firm work with these types of visas?

Answer #4
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer's need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S. For more specific information on the H2B nonimmigrant visa, please contact our office to schedule a telephone or in-person consultation.

Question #5 – Temporary Work Visa – H-1B Nonimmigrant Visa
What are the new USCIS filing fees for H1B visa petitions? Can we send company checks/personal checks? Who are they made out to?

Answer #5
The new USCIS filing fees for an H-1B nonimmigrant visa petition consists of the following: $325.00 for Form I-129 (increased fee, originally $320.00); $750.00/$1500.00 for Form I-129DC (same fee); $500.00 Fraud Protection fee (same); $1225.00 for Form I-907, Request for Premium Processing (increased free, originally $1000.00). For H-1B nonimmigrant visa petitions, USCIS will only accept company checks for petition filing fees. You need to make your check(s) payable to “U.S. Department of Homeland Security.”

Question #6 – General
I work for a company in Chicago, Illinois, a computer company. They have expressed an interest in sponsoring my green card. I have a friend in Maryland who used your firm for other immigration service and I wanted to know if I could use your firm to process my green card? With me in Chicago and your firm in Maryland, can we do this, is it legal?

Answer #6
MVP Law Group is an innovative law firm that provides business immigration services to corporations, universities, hospitals, and other organizations, as well as, entrepreneurs and individuals. Immigration law is federal in nature (i.e., no state or provincial law is involved), therefore, our firm is able to provide U.S. business immigration services to clients located anywhere in the United States and around the world. If you would like to schedule a consultation to discuss your particular situation, please contact our office.

Question #7 – Employment Based Immigration – Green Card
I have an approved I-140 in EB-3 category filed by my previous company. I have since moved onto employment with a new company and filed AC-21 request with new employer. My new employer would also like to file for me under EB-2 category. I believe that I have all qualifications to do so. Can you have more than one immigrant petition filed/pending with the USCIS?

Answer #7
Yes, you may have more than one I-140 Immigrant Petition filed with the USCIS.

Question #8 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on. I have an H-1B application pending since June 2010, no RFE issued yet. Can I contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is it true?

Answer #8
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

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

Question #9 – Employment Based Immigration – Green Card
My priority date is current and has been since the November 2010 visa bulletin. How long do I have to wait, we’ve already waited 5 years for our green cards. Do you suggest I call USCIS and make a service request to make sure they have everything and to speed up the issuance of my card??

Answer #9
Normally when priority dates become current according to the Visa Bulletin, it takes anywhere from 30-90 days to complete the processing of the I-485 before issuing the Green Card to the primary applicant and his/her derivatives, unless issues arise during the process. If you do not receive any correspondence from the USCIS with regard to your case, I would follow up with the USCIS National Customer Service at 1-800-375-5283.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is the grace period on H-1B extension? I reside in Tampa, Florida, my current H-1B visa expires on 12/25/2010 and I’ve filed for an extension on 10/25/2010. Got receipt for it. I was told by my lawyer that I have 240 days grace period when an extension application is pending. I need some proof of this, is there anyway I can obtain it?

Answer #10
Under regulation 8 C.F.R. §274a.12(b)(20), a person lawfully employed under A-3, E-1,E-2,E-3,G-5,H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3, R or TN status who timely files an application for extension consistent with 8 C.F.R. §214.1, is automatically given 240 days from the date of expiration. This extension does not apply to persons seeking a change of status. During 240 days, there is no INA 245(c) bar to adjustment of status.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, January 7th, 2011! Please remember to submit your questions/comments on our h1bvisalawyerblog. HAPPY HOLIDAYS!

MVP "Q & A Forum" - This Friday, December 17th, 2010

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

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

Our next “Q & A Forum” will take place this Friday, December 17th, 2010. Act now and submit your questions!

THANK YOU!

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

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

The application was accepted on October 2, 2009 and on the application where additional recruitment efforts required were suppose to be reported, the Employer cited the posting on its web site and use of a referral program as well as a private employment firm. The dates listed for posting were “06/26/09 to Ongoing.” The application was denied by the CO citing the Employer failed to fill out a section, rendering the whole application incomplete. The Employer then asked for a review but also wanted the chance to change and correct information on the new application. The revised application stated that the end of the posting on the website and referral program was “07/30/09.” The application was redirected to Appeals where the CO argued under 20 C.F.R. § 656.11(a) that an application revised after July 17, 2007 cannot be accepted.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that any incomplete application will be denied. However, the BOARD found that the Employer did not submit an “incomplete” application, the Employer simply did not fill out the section in the format instructed, mm/dd/yyyy. Further, BALCA found that there was no precedent to suggest that filling out “ongoing” in the answer field was incorrect.

Accordingly, BALCA remanded to the CO to grant certification.

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 position of “Purchasing Manager.”

The CO originally denied the application on the grounds that the Employer failed to provide evidence of its State Workforce Agency (SWA) job posting subsequent to an audit. The Employer stated that a screenshot of the Oklahoma Job Link Website was in fact submitted. The request for review was sent to the Appeals Board by the CO. In an appellate brief, the Employer continued to argue that the SWA job posting was included in the original audit while the CO stood by its original position that it was not.

Accordingly, the BOARD reversed the decision of the CO, finding that the Employers SWA job posting was clearly included in the audit response. The application was sent back to the CO for issuance of a labor certification.

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

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the H1B CAP still available? If so, can I still file and get accepted before the cutoff?

Answer #1
As of November 26, 2010, there were approximately 14,600 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 1,600 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvplg.com.

Question #2 – Employment Based Immigration, Green Card – Labor Certification
We filed a labor application and it was approved for a software engineer. We have not received the certified labor application in the mail (approved several weeks ago) and wish to move to the next step, file the I-140. What can we do?

Answer #2
Generally, there are two options available to you; however, both are rather similar. The recommended route is to file the I-140 petition with a request that the United States Citizenship and Immigration Service (USCIS) obtain the certified Labor from the Department of Labor (DOL) itself. The other option is to write a letter to the DOL notifying them that the USCIS will be requesting the certified Labor from them directly for purposes of filing the I-140 petition.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am planning on traveling to Canada during the Winter Holidays. I have heard through various people that when I attempt to pass the border back to the US, Customs may change my I-94 expiration date. Is this true?

Answer #3
Although you may have a valid visa that was approved by the USCIS, the Customs and Border Patrol (CBP) Officers operate under their own set of rules. If you have legitimate/bona fide paperwork evidencing your employment and a valid work visa or other proof of your eligibility to be in the US when you attempt to cross the border from Canada to the United States, the CBP Officer should stamp the new I-94 with the expiration date of your current valid visa.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
My I-140 was denied and my employer has appealed the decision. My H1 is due to expire next May 2011 as I am currently in my 6th year. Can we apply for H1 extensions based on my pending I-140 appeal? If yes, for 3 years or for 1 year?

Answer #4
Under AC21, yes you may be eligible to file an H-1B extension beyond the six year period if you appealed the denied I-140 in a timely manner (before the deadline). An applicant is eligible to file for H-1B one-year extensions if they have a pending I-140 petition appeal at the Administration Appeals Office (AAO).

Question #5 – Employment Based Immigration – Green Card
I have a US green card, but I came to India without filling re-entry permit form as due to recession time not getting jobs even in three months, can I fill from it on India?

Answer #5
If you have a US Green Card, you do not have the have a re-entry permit (the green card itself is your authorization to be in the US), you have the status of a Lawful Permanent Resident and may enter and exit the country based on your U.S. Green Card. Re-entry documents are requested by applicants when their Adjustment petitions (I-485) are pending with the USCIS. Therefore, once you obtain a U.S. Green Card, you are allowed to travel inside and outside the U.S. without having a re-entry permit (Advance Parole document).

Question #6 – Temporary Work Visa – H-1B Nonimmigrant Visa
I got my H1B approved in 2009. Recently I saw that my I-797C form, states that my "Valid from" is from10/1/2009 to 3/29/2012. This is strange, since most of my buddies have it till 9/29/2012. Is this an error. Can I legally stay till Sep, i.e. till H1B is renewed? Kindly help me as this is bothering me a lot. Thanks in advance.

Answer #6
The USCIS can decide the date of the expiration of your H-1B visa status on their own. You may request an end date, but the USCIS will give you the date they wish. However, it could have been a typo/misunderstanding, therefore, you can contact the USCIS National Customer Service at 1-800-375-5283 and make a service request so that your case will be re-opened and reviewed to determine if the expiration date is correct or needs to be changed. Additionally, if a Work Order/Purchase order was included in your petition to the USCIS, they may have relied solely upon the end date of the work order/purchase order. These are issues you may wish to investigate before contacting the National Customer Service number.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
Are your fees included in the fees to go to USCIS for filing an H-1B petition?

Answer #7
No, our legal fees are separate and distinct from the filing fees paid to the USCIS for the processing of the H-1B petition. The USCIS filing fees have increased as of November 23, 2010, please see below:

USCIS filing fees:
$325 for Form I-129
$750/$1500 for Form I-129DC (depends upon amount of employees of company)
$500 for Fraud Fee
$1225 for Premium Processing (entirely OPTIONAL)
$2000 new fee ONLY if employer has over 50 employees with over 50% of them on a nonimmigrant visa (H or L)

Question #8 – Family Based Immigration
My Grandfather (Dad's Dad) was a US citizen and he had filed an I 130 petition (Immigrant petition for relative, fiancé, or orphan) for my dad in Feb 2007. Unfortunately, my grandfather passed away this April. My dad's sisters are US citizens and they are willing to take over the case, if we can transfer the petition. I would like to know if there anything that can be done with this petition now? Or is it a closed chapter?

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

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

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
For a part time H-1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #9
40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time. The regulations do not provide a minimum number of hours per week or days per week to be considered a part time H-1B worker. The I-129 petition and certified LCA must cover the jurisdiction of employment, hours per week and pay per hour. If the position becomes full time, an amended H-1B petition would need to be filed with the USCIS

Question #10 – Family Based Immigration
I am a US Citizen. I have a sister that lives in Antwerp, Belgium. I would like for my sister to have a Green Card and she can live with me in the US. With my sister case she is married and her husband is a Belgium Citizen. All I know is I would like my sister to come to the United States and obtain a Green Card. I would like to sponsor or bring my sister to come to the United States. I know that if I would like to sponsor my sister I need to file Form I-130, Petition for Alien Relative, Form I-864, Affidavit of Support, and Form I-485, Application to Register Permanent Residence or Adjust Status. I was wondering is there any better approach for my sister come to the US and what would you recommend me to do. Thank you for your time and I hope to hear from you soon.

Answer #10
In order to sponsor an applicant for lawful permanent residency, a sponsoring relative must provide evidence of the following: They are a United States citizen or a Lawful Permanent Resident of the U.S.; they can support the dependent relative at 125% above the mandated poverty line; and they must also establish proof of their relationship to the dependent relative. If you are a U.S. Citizen, then the family fourth preference category is what you would file under.
A sponsoring relative should first submit an immigrant visa petition, (Form I-130, Petition for Alien Relative). This form should be accompanied by proof of the relationship between the sponsoring relative and the dependent foreign applicant, along with the Affidavit of Support (AOS) and then the I-485 petition once the underlying I-130 petition has been approved.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, December 17th, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

MVP "Q & A Forum" - This Friday, December 3rd, 2010

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

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

Our next “Q & A Forum” will take place this Friday, December 3rd, 2010. Act now and submit your questions!

THANK YOU!

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

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

Question #1 – Employment Based Immigration, Green Card
My case was filed in Oct 2005 and it is current and still waiting. I tried opening Service Request and took InfoPass as well. I got InfoPass appt yesterday in local VA office. They were not able to tell me about my case only that it is still under review at the local Baltimore office where it was transferred to in August 2009. Please let me know what I need to do?

Answer #1
I would suggest making another InfoPass appointment at the local Baltimore, MD office to determine the status of your pending case as this is where your case is presently pending. Taking an InfoPass appointment may help you to determine if any additional documents are needed in order for the USCIS Officer to finish the processing of your case so that a decision can be made.

Question #2 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am not sure what is going on with my pending H-1B application, been pending since July 2010, no RFE issued yet. I heard that I can contact USCIS and make a service request for them to look further into the case and why it is taking so long. Is this true? How do I do it?

Answer #2
For a pending I-129 petition, the Petitioner/Authorized Representative or an Attorney for the Petitioner/Applicant should contact the USCIS National Customer Service Center, which can be reached at 1-800-375-5283, to initiate the service request for a petition that is outside of the normal processing time.

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

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
For a part time H-1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #3
40 hours + per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time. The regulations do not provide a minimum number of hours per week or days per week to be considered a part time H-1B worker. The I-129 petition and certified LCA must cover the jurisdiction of employment, hours per week and pay per hour. If the position becomes full time, an amended H-1B petition would need to be filed with the USCIS.

Question #4 – Temporary Work Visa – H-1B Nonimmigrant Visa
Is the FY 2011 CAP still available or must I wait until April 1, 2011 to submit a new H-1B?

Answer #4
As of November 12, 2010, there were approximately 17,200 H-1B Regular CAP subject nonimmigrant visas remaining and approximately 2,600 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to www.mvp.com.

Question #5 – Employment Based Immigration – Green Card
My spouse and children have received their Green Cards but I have not yet received mine. I filed for our GCs through my employer. Is there a problem with the processing of my case? Could my case have been denied? What do I need to do? Any guidance is appreciated.

Answer #5
Based on the small amount of information provided, it seems like there may just be an issue with the issuance/mailing of your Green Card. Your husband and children would not have received their Green Cards if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and children are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 45 days from the date your spouse and children received their Green Cards by calling 1-800-375-5283.

Question #6 – General – USCIS Filing Fees
When do the new USCIS filing fees go into effect?

Answer #6
The new fee schedule goes into effect Nov. 23, 2010. Applications or petitions postmarked
or otherwise filed on or after this date must include the new fee, or they will be rejected. The new fee schedule increases application and petition fees by an average of about 10 percent
but does not increase the naturalization application fee.

Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
My H1B visa got approved in 2009 which was filed by another company. I did not get a chance to travel to USA and even my visa is not stampted. Now I am with other employer. Can I transfer my H1B to this new employer?

Answer #7
The safest option to utilize at this point given the facts as you have provided is to file a new H-1B petition. Transfers and Extensions do not apply in this scenario because you have never entered the U.S as an H-1B nonimmigrant. Once the petition is filed and approval received, you would need to attend the Consulate interview and if all goes well, you would be able to then travel to the U.S. and after speaking with CBP, enter as an H-1B nonimmigrant visa holder.

Question #8 – General – Employment Based Immigration, Green Card
I have an approved I-140 petition and wish to file my I-485. I am currently on H-1B and my wife, H4. She wants to be able to work so we would like to file 485 and obtain EAD documents. My lawyer says I must wait for my priority date to become current. Please explain for me what “priority date becoming current” means? I filed in EB2 category from China.

Answer #8
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you were filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.

Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.
In addition to the above website, you can go to http://immigrationroad.com/green-card-tracker.php and track how many green card applicants are in front of you using your priority date and preference category.

Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
I am currently working for a company, but I got an offer from another individual to start a new business with him as an equal partner. I really want to pursue this but am concerned. Would it be better for me to change my status to self employed and apply for the H1B visa for self sponsership?

Answer #9
To put it simply, the H-1B nonimmigrant visa is an employment based temporary nonimmigrant work visa. This means that you must first have a sponsoring employer willing to sponsor you before you may petition for and obtain an H-1B nonimmigrant visa. The H-1B regulations do not allow for self sponsorship.

Question #10 – Employment Based Immigration – Green Card - EAD Renewal
I filed for my EAD renewal back in May 2010 and it is still pending. My current EAD expires in two weeks. Can I expedite the EAD renewal process since my card is expiring soon, can I continue to work with the receipt notice? Can I obtain a temporary EAD to continue working?

Answer #10
If an EAD renewal has been pending for 75+ days, you may initiate an ‘outside the processing times’ Service Request with the USCIS. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved and the card is in your hand. You MAY NOT continue to work using the EAD receipt notice as the receipt is not evidence of an approval. There is no such thing as a temporary EAD.

**You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.

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

Our next “Immigration Q & A Forum” is scheduled for Friday, December 3rd, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

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

The applicants’ Employer Application for Permanent Employment Certification was originally accepted by the CO on December 1, 2006 but the application was then denied on December 14 due to the fact that alien did not meet the minimum education, training and experience requirements. The CO issued an audit notification and request for Notice of Filing (NOF) on January 15, 2009 after the Employer asked for a review of the case. On February 11, 2009 the alien’s employer provided all of the information that was questioned in the initial denial as well as the NOF which stated the position was posted from September 1 to September 13. The CO again denied the application on March 16 citing that neither the Employer’s name nor sufficient contact information was provided in the posting. Even though the Employer asked for reconsideration and provided evidence that the posting was sufficient, the CO stuck by the denial. The CO’s main reason for denial was that even though the NOF contained the name and title of the Employer, the information was only added after the initial posting. In the appellate brief filed, the CO reiterated the fact that the information was added to the document after it had already been posted. The CO also mentioned the ambiguity in regards to how many companies resided at that location.

PERM Regulation 20 C.F.R. § 656.10(d) controls and provides that the Employer give notice of filing of the Employer Application for Permanent Employment Certification and that the posting must contain the required information. It is the employer’s responsibility to submit thorough documentation, interpret requests broadly and to be confident that the documentation submitted will support the application. In this case, the Employer’s application did not contain the business name on the NOF and the NOF did not the fully meet all requirements.
Accordingly, the Board affirmed the decision of the CO in denying labor certification.

MVP "Q & A Forum" - This Friday, November 19th, 2010

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

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

Our next “Q & A Forum” will take place this Friday, November 19th, 2010. Act now and submit your questions!

THANK YOU!

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

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 position of “Chefs and Head Cooks.”

The CO originally denied certification on May 5, 2008 because the sponsorship of the immigrant worker could not be verified by the Employer. On June 2, 2008, reconsideration was requested by the Employer due to the fact that the immigrant worker’s contact individual had recently stopped working for the restaurant. An Audit Notification was filed by the CO on December 23, 2009 requesting the Employer to provide its Notice of Filing and recruitment documents as well as present evidence to justify the foreign language requirement. Certification was denied by the CO on February 9, 2010 on the grounds that the Notice of Filing was “posted for fewer than 10 consecutive business days.” The Employer submitted another request for reconsideration, citing that the restaurant is in fact open seven days a week, making the dates supplied (May 14, 2007 to May 24, 2007) sufficient enough for a Notice of Filing posting requirement. Even though the Employer gave evidence that Saturdays and Sundays are the busiest days at the restaurant and that there is a need for employees on those days, the CO still denied labor certification stating business days are only defined by Monday through Friday, excluding federal holidays and weekends.

PERM regulations 20 C.F.R. § 656.10(d) controls and its provides the posting of a Notice of Filing by an Employer must be posted “for at least 10 consecutive business days” but does not specify what determines a business day. The CO denied certification based on the fact the Notice of Filing was not posted for at least 10 business days but the Employer provided evidence that the restaurant operated on Saturdays and Sundays, therefore requesting weekends be considered business days. BALCA disagreed with the CO saying business days are not confined to Monday through Friday. The Employers requirement was fulfilled because the Notice of Filing was posted for 10 consecutive days when “employees [were] on the worksite.” BALCA is giving the Employer another opportunity to demonstrate its Notice of Filing requirement due to the fact that the restaurant is open on the weekends.

Accordingly, the BOARD vacated the decision of the CO in denying labor certification and remanded for further proceedings consistent with this decision.

MVP "Q & A Forum" - This Friday, November 5th, 2010

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

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

Our next “Q & A Forum” will take place this Friday, November 5th, 2010. Act now and submit your questions!

THANK YOU!

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

MVP "Q & A Forum" - This Friday, October 15th, 2010

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

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

Our next “Q & A Forum” will take place this Friday, October 15th, 2010. Act now and submit your questions!

THANK YOU!

MVP "Q & A Forum" - This Friday, October 1st, 2010

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

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

Our next “Q & A Forum” will take place this Friday, October 1st, 2010. Act now and submit your questions!

THANK YOU!

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

An Audit Notification was issued by the CO on April 28, 2006 requesting documents showing the company’s finances, recruitments and corporate structure due to the fact that the application showed the employer is “a closely held corporation, partnership or sole proprietorship.” The Employer submitted its Articles of Incorporation, along with other requested documentation on May 23, 2006. The CO denied the certification on November 9, 2007 because the documents submitted by the employer were not adequate and because it was a close partnership where aliens have influence and control, therefore job opportunities were not available to US workers. The CO cited 20 C.F.R. §656.10(c)(8) which states that job opportunities must clearly be open to all US workers. The Employer responded by submitting a request for review arguing that according the Department of Labor a single factor doesn’t control the authenticity of a job opportunity where an alien has influence. The employer went on to argue that the alien was not involved in the recruitment process, holds no management position, and is neither an incorporator nor a founder. On March 26, 2009 the CO filed a letter of reconsideration finding the employer still did not prove the job was open to all US workers and still believed the alien had a significant role in the management of the company.

PERM regulation 20 C.F.R §656.10(c)(8) controls and provides that a job opportunity must be clearly open to any US worker. In the event of an audit of a closely held company where an alien holds an ownership interest the employer must be able to prove the existence of a legitimate job opportunity for all US workers. In the instant case, the employer failed to demonstrate the existence “of a bona fide job opportunity ….available all US workers.” The employer did not overcome the presumption that the alien has power and control in the company as well as over the job opportunity.

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

In the Matter of Intervid, Inc.

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

The Employer originally stated on the ETA Form 9098 that the position required a high school education and 24 months of experience in the job but when the alien filed his application he only had a high school education. The application was returned to the Employer by the CO based on the grounds that the Employer failed to indicate the year the education was completed. When the form was returned, it showed the alien did not have any education but on the Form 9098 it still stated that high school completion was a requirement for the job. On the grounds that the alien did not meet the job qualifications of Form 9098 the CO denied the application. A request for reconsideration of the application was submitted; the CO found that the grounds for denial were valid. Since the education level had been changed on the Form 9098, the alien no longer had the required experience for the job.

PERM Regulation 20 C.F.R. § 656. 21 (b)(5) controls and provides that an “employer must demonstrate that the requirements it specifies for the job are its actual minimum requirements and that it has not hired the alien or other workers with less training or experience for jobs similar to the one offered.” When the form was resubmitted showing the alien with no education and the job requiring a high school degree, the CO found that the alien was unqualified for the job. The CO made the decision to deny based on the Form 9098 not based on documents accompanying the form.

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

In Matter of Grand Metropolitan Housewares, Inc.

MVP "Q & A Forum" - This Friday, September 17, 2010

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

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

Our next “Q & A Forum” will take place this Friday, September 17, 2010. Act now and submit your questions!

THANK YOU!

The Department of State has released its latest Visa Bulletin.

Click here to view the October 2010 Visa Bulletin.

The October 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.

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

Have you already applied in EB3, thinking about filing in EB2...if you are eligible, contact MVP Law Group.

Did you file 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 online or toll free at 1-800-447-0796.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying certification. The Employer filed an Application for Permanent Labor Certification for an alien worker for the position of “Programmer."

An Audit Notification was issued on September 11, 2007 for the purpose of providing evidence of recruitment and documentation. The Employer submitted the necessary forms for the audit: a copy of the ETA Form 9089, recruitment report, prevailing wage determination, Notice of Filing, copy of the job order; evidence of employee referral program, and copies of newspaper advertisement. The CO denied certification due to the lack of documentation from the Employer that showed the job was advertised on its website and job search websites. The employer then requested a review on December 13, 2007 stating there was no copy of these postings and they couldn’t make a print out due to an internal error. The CO issued a letter of reconsideration indicating the Employer did fail to provide adequate documentation and did not overcome the deficiencies in the determination letter. The Employer filed a Statement of Intent to Proceed with the appeal and an appellate brief but the CO still asserted that there wasn’t enough documentation and that was a valid reason for denial in its appellate brief.

PERM regulations 20 C.F.R. §656.17 (e) (1) (ii) controls and it provides that when an employer advertises a professional occupation, there are additional steps they can take advantage of: advertising the position on the company website and advertising the positing on job search websites. These steps should be documented and all applications for employment filed with the Department of Labor must be kept by the employer for 5 years. In the instant case, the Employer failed to provide enough documentation that the position was indeed advertised on multiple websites. The only supporting data from the Employer was a signed recruitment report.

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

In the Matter of Trans Atlantic Systems, Inc.

MVP "Q & A Forum" - This Friday, September 3, 2010

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

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

Our next “Q & A Forum” will take place this Friday, September 3, 2010. Act now and submit your questions!

THANK YOU!

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can more than one (1) employer file a temporary (part-time) H1B visa application on my behalf at the same time? For a part time H1B worker, what is the minimum number of hours per week and days per week of work required to be eligible for maintaining the part-time H1B visa status?

Answer #1
Simply put, yes more than one employer can file a temporary part-time H-1B visa application for you during the same time period, as long as a certified LCA covering the jurisdiction of employment is obtained and the I-129 petition and additional supporting documentation reflects this part-time period. 40 hours per week would be considered a full time employee, therefore, anything less than 40 hours per week would be considered part-time.

Question #2 – Employment Based Immigration – Green Card
We have traveled to India about 2 months back (in June). My husband got a job transfer to India, and I resigned my job in the US to move here with my family. Since we are not there in the US, do you know if the green cards will go back to the USCIS? Or to my forwarding address in the US?

Answer #2
If you do intend to come back to the U.S. in the near future - they will not send your permanent resident cards to India, therefore, you will need to contact the USCIS and provide your new U.S. mailing address so that they will be sent there. The USCIS DOES NOT forward mail, so if you have your mail being forwarded, your cards will be returned to the USCIS and the USCIS case status will indicate that your cards have been returned as undeliverable until you can provide the USCIS with an updated U.S. mailing address for them to be re-sent.

Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa
What is the minimum time period for which an H1B visa can be issued? Can it be less than 3 years? If yes, what is the minimum number of years for which my employer can sponsor me for an H1B visa?

Answer #3
The maximum time period that an H-1B visa can be issued for is three (3) years. Therefore, if your position does not require your placement for the entire three year period, your employer can request any time period from six (6) months to three (3) years.

Question #4 – Employment Based Immigration – Green Card
I just received my Green Card, what do I do now?

Answer #4
USCIS maintains a useful web page on the topic “Now That You Are A Permanent Resident.” It can be found at http://uscis.gov this is the USCIS home page, click on After a Green Card is Granted under the Green Card (Permanent Residence) heading. Then look to the right side and under More Information you will find valuable information on, among other topics, how not to lose your status as a permanent resident. Additionally, if you look to the left side under After a Green Card is Granted you will find numerous resources on different topics relating to your status as a Permanent Resident.

Question #5 – General – Social Security Card
How and when can I get a Social Security Card?

Answer #5
Generally, you may obtain a Social Security Card once you are legally authorized to work in the United States. Such authorization may be evidenced by receipt of an employment authorization card, an Alien Registration Card (Green Card), or receipt of temporary evidence of Green Card status (as established by presentation of an I-551 stamp in your passport). You will need to file an application for a Social Security Number in person at the Social Security Office. When filing this application at the Social Security Office, you should bring the following documents with you: your original birth certificate, passport, and employment authorization document, stamped passport or Green Card. Call 1-800-772-1213 for further information including the address of your local Social Security office, or visit their website at www.ssa.gov.

Question #6 – Employment Based Immigration - Green Card
My co-worker, a U.S. citizen worker showed me a brochure he receives from the SSA. It provides the credits he receives each year for the work he does. Does this apply to me, should I be receiving the brochure? Please advise what I need to do…

Answer #6
If you have a Social Security number, you should check to make sure you received credits under Social Security for any taxable work you did before you got your Green Card. Sometimes the Social Security Administration misplaces the records if you did not have a valid card, and this is the time to unscramble the records. Request a form SSA-7004, Request for Earnings and Benefit Estimate Statement, from Social Security to check these records. In fact, you should check your earnings statement every three to four years because errors more than four years old usually cannot be corrected.

Question #7 – Employment Based Immigration – Labor Certification
What is the difference between the old process for obtaining labor certification and the new PERM process?

Answer #7
In 2005, the Department of Labor (DOL) drastically changed the way it processes labor certification cases. The primary difference between the new process (referred to as “PERM”) and the old process is how recruitment-related documentation is handled. Previously, supporting documentation such as newspaper ads and other recruitment efforts, justification of the job requirements, prevailing wage determinations, etc., were submitted when the labor certification application was filed. Under PERM, while the same documentation must be prepared or assembled, it is kept by the employer and only submitted if and when requested by the DOL. The employer is required to retain this documentation for a period of five years. Under the previous regulations, there were two types of labor certifications: Reduction in Recruitment (RIR) (also known as “fast-track,” since these types of cases were given priority handling), and traditional or non–Reduction in Recruitment (non–RIR) cases. These two classifications have been done away with. However, occupations are now classified as “professional” or “nonprofessional” and each classification has different recruitment requirements.

Question #8 – Employment Based Immigration - Green Card
The Social Security card I have states that it is not valid for employment, but I just received my Green Card in the mail…can I continue to use my Social Security card or can they re-issue me a card without the restriction on it?

Answer #8
If you already have your Social Security card, but it is annotated indicating that it is not valid for employment without a USCIS employment authorization document, you should contact Social Security with your evidence of permanent resident status to have the restrictions removed.

Question #9 – Employment Based Immigration – Green Card
My priority date is current. How long do I have to wait, we’ve already waited 5 years for our green cards. Do you suggest I call USCIS and make a service request to make sure they have everything and to speed up the issuance of my card??

Answer #9
Normally when priority dates become current according to the Visa Bulletin, it takes anywhere from 30-90 days to complete the processing of the I-485 before issuing the Green Card to the primary applicant and his/her derivatives, unless issues arise during the process.

Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
How many H1 nonimmigrant visas are left?

Answer #10
As of August 13, 2010, there were 35,300 H-1B Regular CAP subject nonimmigrant visas remaining and 7,700 H-1B Masters Exemption nonimmigrant visas remaining. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. For continuous FY2011 H-1B Cap updates, please refer to our website.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, September 3, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

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

MVP "Q & A Forum" - This Friday, August 20, 2010

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

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

Our next “Q & A Forum” will take place this Friday, August 20, 2010. Act now and submit your questions!

THANK YOU!

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

The employer filed an application for labor certification which was accepted for processing on February 8, 2006. ETA Form 9089 indicated a requirement of thirty-two (32) months of experience in the job offered, and six (6) months of training as a certified welder. The CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation and the employer complied. Thereafter the CO denied certification because the foreign worker did not meet the Employer’s minimum education, training and experience requirements, in violation of 20 C.F.R. §656.17(i). Specifically, the application required 6 months of training as a certified welder and the application did not show that the Alien had this training. The Employer responded by requesting reconsideration stating that the Alien had a total of 13 years of experience in construction work and gave specific dates of employment with other companies. The CO again denied certification on the same basis. The employer submitted another request for reconsideration stating that the Alien was the ONLY applicant to respond to recruitment and met every requirement of the posting including that of a certified welder. The CO issued a letter of reconsideration indicating that denial was proper because the Alien did not meet the minimum requirements and no further evidence was provided to support the employer’s claim that the Alien in fact had the 6 months of required training as a certified welder.

PERM Regulation 20 C.F.R. § 656.17(i)(1) controls and it provides that, “the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.”

In the instant case, Section H-4 of ETA Form 9089, required 6 months of training as a certified welder, but the employer failed to include in the foreign worker’s work experience job details that he received training in, or performed, any welding. Further, the employer failed to submit any evidence to support its claim that the beneficiary did in fact possess the welding experience required.

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

Matter of Virginia Carolina Construction

MVP "Q & A Forum" - This Friday, August 6, 2010

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

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

Our next “Q & A Forum” will take place this Friday, August 6, 2010. Act now and submit your questions!

THANK YOU!

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can your firm sponsor my H-1B or find a company to sponsor me? I am ready to come to the U.S. and work, I have a BS in Computer Science and three years experience in computer programming. What is the process?

Answer #1
We are a law firm that will help you prepare the paperwork (Forms and documents) for your H-1B non-immigrant petition once you find an employer willing to sponsor you for employment; however, we cannot find you H-1B sponsorship. In summary, once you have secured an H-1B sponsor (U.S. employer), we can then help you out.

The normal process for H-1B sponsorship starts when you or your employer contacts our office to initiate the process. You or your employer would contact our office, sign a legal agreement detailing the legal fees associated with the preparation and filing of the H-1B visa petition, you would then complete the H-1B questionnaire, and send all requested background documents to our office to begin the process. Once the legal payment, the completed questionnaire and background docs have been received in our office, we would be able to begin preparing your case. Once your forms have been prepared and thoroughly reviewed, we email the final documents to your sponsoring employer for their review and signatures. These forms must then be returned to our office with the requisite USCIS filing fees, and will be filed on your behalf with the USCIS. Upon receipt of the H-1B petition, the USCIS will issue a receipt notice containing a specific number which will allow you to monitor your case while it is being processed.

Question #2 - Temporary Work Visa – H-1B Nonimmigrant Visa
I have exhausted my 6 years on H-1B visa and returned to my country. I have been here ninety (90) days; can I now apply for a new H-1B visa under the current cap to return to U.S.? Please let me know so we can move forward.

Answer #2
According to the regulations, once you have exhausted the 6 year limit on H-1B, you must return to your home country for one (1) year before you can petition again for an H-1B nonimmigrant visa.

Question #3 – Employment Based Immigration – Green Card - EAD/AP Renewal
I Have Applied my EAD (765) and AP (131) for renewal through paper. USCIS have returned the EAD and AP Documents stating that I have provided incorrect amount on the check or has not been provided. I have provided an amount of $340 for EAD and separate check of $385 for AP. The check was paid to “U.S. Department of Homeland Security” on June 2nd. My EAD expires in the Middle of August 2010. Also my I-485 is current now as per the processing time. I have applied 3 times before for EAD and AP personally and never had this problem. Granted the last renewal I have applied through e-file. I have applied through paper this time to Dallas lockbox. What could have been the mistake I have made in my submission?

Answer #3
It sounds like they rejected both cases due to the mix up with the payment for the AP filing. To be on the safe side, I suggest that you send three checks, one in the amount of $340.00 for the EAD renewal, the second in the amount of $305.00 for the AP renewal, and the third in the amount of $80.00 for biometrics. If they need to process your biometrics, they will, if they don't, they will return the check. There is no way of returning the biometrics fee on a check for $385.00 if biometrics are not needed. You will need to enclose the rejection notice on the top of all of your forms and supporting documentation. Paper clipped to the notice, you will need to place the new checks and your pictures.

Question #4 – Employment Based Immigration – Green Card - EAD Renewal
I just filed my EAD renewal last week. Can I expedite the EAD renewal process since my EAD expires in Mid August?

Answer #4
You cannot expedite an EAD renewal request. You can only expedite an AP renewal request and only under specific circumstances. You can file an EAD renewal request up to 120 days in advance of the expiration of your current EAD. You should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD, so that you can continue working. If you do not receive your EAD renewal request by mid August when your current EAD expires, you must wait and not work until your EAD is approved.

Question #5 – Employment Based Immigration – Temporary Work Visa – H-1B Nonimmigrant Visa
USCIS received my H1B/H4 petitions on 07/14/2010, we filed for premium processing. What is timeframe for normal processing? My driving license expires on 9/19/2010. If they process under normal process do they return $1000 which is extra we paid to process under premium processing?

Answer #5
According to the information you provided, your case is still within the normal processing times for a case filed under Premium Processing. The normal processing time for a case filed under Premium Processing is 15 calendar days from the date of submission. Today is July 23, the case was accepted for processing on July 14, and only ten (10) days have passed since the acceptance of your case. If you do not receive an update within the remaining 5 days, your employer/attorney will need to contact the USCIS National Customer Service Center or the appropriate Service Center to ensure that the case is processed according to the timeframes provided for premium processing.

Question #6 - Employment Based Immigration – Green Card - General
We recently bought a new house expected to move on July 25th, 2010. How to notify and update to USICS for I-485 and EAD that is under processing?

Answer #6
The link provided at the bottom of this response will direct you to the online portal for submission of your address change request (however, you will still need to submit Form AR-11 to USCIS within 10 days after your move). According to the USCIS website:

Non-U.S. Citizens
If you have moved, you need to follow two different steps:
• Step 1: File a Form AR-11 (This changes your address in our master database.);
• Step 2: If you have a pending case, you must also file a Change of Address online or call our National Customer Service Center at (800) 375-5283. (This changes your address for the specific application you have submitted.)
**Please note that if you are a non-U.S. citizen and you have a pending case, you must complete both steps to make sure that you comply with the regulations and so we can reach you at your correct address.

The Process
If you want to change your address online and/or file a Form AR-11 using our Online Change of Address Notification tool, you will need to have certain information available. Please have the following information available before you begin:
• Your receipt notice or other notice we sent you showing your receipt number (if you have a pending case with USCIS);
• Your new address;
• Your old address;
• If you have filed a petition for a family member, the names and biographical information for that person.
If you are a non-U.S. citizen, please also have:
• The date when you last entered the United States (If you cannot remember, please fill in an approximate date.);
• The location where you last entered the United States (the port of entry where you entered – whether by land, sea, or air).

Change of Address Request

Question #7 – Employment Based Immigration – Temporary Work Visa – H-1B Nonimmigrant Visa
I have a BA and I am a former judge, how can I qualify for an H1visa?

Answer #7
Simply stated, in order to be eligible for an H-1B nonimmigrant visa, the applicant (you) must possess at least a U.S. Bachelor's degree or its foreign equivalent and the job position must require at least a Bachelor's degree or its foreign equivalent and you must possess experience in the particular field. You must have a sponsoring employer to sponsor your H-1B visa petition; you cannot file for an H1 visa on your own.

Question #8 – Employment Based Immigration – Temporary Work Visa – H-1B Nonimmigrant Visa
Does State of California or federal government give any preference to applicants with Infrastructure background especially for construction projects that have been approved by California voters?

Answer #8
No, the State of California and the Federal government do not give any special preference to applicants with Infrastructure background. Cases are determined and decided on a case-by-case basis, no special preference is suppose to be given to any type of individual or any individual in a specific type of work.

Question #9 – Employment Based Immigration – Temporary Work Visa - H-2B Nonimmigrant Visa
I’ve heard of this H-2B temporary visa. What is it?

Answer #9
The H2B working visa is a nonimmigrant visa which allows foreign nationals to enter into the U.S. temporarily and engage in nonagricultural employment which is seasonal, intermittent, a peak load need, or a one-time occurrence. To qualify for an H-2B visa, you must have a valid job offer from a U.S. employer to perform temporary or seasonal nonagricultural work and proof of an intent to return to your home country on expiration of the visa.

The limitations of the H-2B visa are that the job must be temporary in nature and the need must be for one year or less, the employer's need may not be ongoing or continuous. The employer has the burden of establishing the facts necessary to support a finding that the need is a one-time occurrence, seasonal, peak load or intermittent need. H-2b time counts whether you are in the U.S. or abroad, and H-2b dependents may not work in the U.S.

Question #10 – Student Visa – F1
I want my younger sister to come to USA to go to school. What do we need to do?

Answer #10
Please visit the following website as it will provide the steps for how your sister can get her F1 visa to come to the U.S. for school.

The first step for a prospective nonimmigrant student is being accepted for enrollment in an established school which is SEVP certified. There is a list of SEVP certified schools on the website listed above. Therefore, as her first step, your sister must first apply for enrollment at a college of her choice which is listed on the SEVP certified list. Once she has been accepted by that SEVP certified school, she will then need to apply for her F1 student visa. All of the steps for obtaining such status are available on the website listed above, and additional information can be found on this website .

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, August 6, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

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

MVP "Q & A Forum" - This Friday, July 23, 2010

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

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

Our next “Q & A Forum” will take place this Friday, July 23, 2010. Act now and submit your questions!

THANK YOU!

Question #1 – Marriage Based Immigration – Conditional Permanent Resident
I would like to know the procedure for “removing conditions.” When can I file? I’m married to a U.S. Citizen and my conditional green card is set to expire in May of 2011.

Answer #1
You can file to remove the conditions 90 days prior to the expiration of your second anniversary as a conditional resident. It is very important that you file Form I-751 (Petition to Remove the Conditions on Residence) within the 90 day window of time. If you file too early, the USCIS will send your application back. You may file at any time during the 90 day window, but it is suggested that you file fairly early in the window. If you fail to properly file Form I-751 within the 90 day period, your conditional resident status will automatically be terminated and the USCIS will order removal proceedings against you and a hearing will be conducted where you will be given the opportunity to rebut the government’s allegations against you.

The items involved in filing the application to “remove conditions” include: a completed Form I-751; USCIS filing fee of $545.00; certified copy of front and back of permanent resident card; evidence of a bona fide relationship; and a detailed cover sheet indicating the contents of the package.

Question #2 - Employment Based Immigration – Green Card
I’m confused. My priority date is current and I want to file my I-485 application. Do I have to pay for both Employment Authorization and Advance Parole; I’ve seen conflicting information on various immigration forums.

Answer #2
Taken verbatim from the USCIS website - If you file Form I-485 to adjust your status as a permanent resident on or after July 30, 2007, no additional fee is required to also file an application for employment authorization (EAD) on Form I-765 and/or advance parole (AP) on Form I-131. If you choose to file the I-765 and/or I-131 separately after July 30, 2007, you must also submit a copy of your I-797C, Notice of Action receipt as evidence of the filing of an I-485.

Accordingly, for a total of $1,010.00 you may submit Form I-485; Form I-765 and Form I-131 to the USCIS for processing. The filing fees are less for applicants 79+, and for children under the age of 14.

If you would like to renew your EAD and/or AP document, you will be required to pay the associated fees of $340.00 for EAD renewal and/or $305.00 for AP renewal.

Question #3 – General
I am not sure what is going on with my pending I-140 application. I heard that I can contact USCIS and make a service request for them to look further into my case and why it is taking so long. Is this true? How do I do it? Does my employer need to contact them?

Answer #3
The USCIS National Customer Service Center, which can be reached at 1-800-375-5283, will initiate a service request when a petition is outside of the normal processing time if the request is made by the sponsoring Petitioner, the Applicant/Beneficiary, or an Authorized Representative or an Attorney for the Petitioner/Applicant.

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

Question #4 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
My immigration details are as follows:

Visa type : F1
Visa Issue Date : 20 June 2007
Visa Expiration Date : 18 June 2012

Course : M.S. in Computer Engineering
Status : Completed
Course Completion Date : 30 May 2010
Course Duration : Fall 2007 - Spring 2010

Initial I-20 issued on : 08/17/2007
New I-20 issued on : 01/19/2010

The problem that I am currently facing is that I was issued a new I-20 for the period 01/19/2010 to 05/30/2010 with a different Sevis number. I was required to pay the Sevis fees once again. Due to the same, I have one semester of study reflecting on my current Sevis. To apply for an OPT, one needs at least two semesters of study. Hence, I am not able to apply for an OPT. I am therefore looking for a job in a company that can process my H1B. Do I qualify to file an H-1B if I can find a willing sponsor?

Answer #4
Given the circumstances of your current situation, I do not foresee any issues in you applying for an H-1B visa under the Master’s CAP exemption. If the sponsoring employer has a position for you that normally requires at a minimum the attainment of a Bachelors degree in a field related to your specific degree, then you should qualify given the details you have provided. However, you will need to speak with an Experienced Immigration Lawyer to better evaluate the situation once you have secured an employer to sponsor your visa.

Question #5 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
Are H-1B visas for FY2011 still available? What do the numbers look like? Is there still time to file?

Answer #5
The H-1B 2011 CAP opened on April 1, 2010 and is still OPEN. The H-1B FY2011 runs from October 1, 2010 until September 30, 2011. As of July 2, 2010, 40,800 H-1B regular CAP visas are still available for FY2011 out of 65,000. There are approximately 9,600 H-1B Master’s exemption visas still available for FY2011 out of 20,000.

Question #6 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
My company has filed several H-1B visas for Physical Therapists, only two are in the US, working as of now. One of them wants to leave my company and go to another employer. This is something against our interests, as to date we have spent a lot of time and effort in bringing them to the US. Is there anything we can do about it? At any time during the transfer
of the candidate's H1B visa – is our consent or concurrence required at all?

Answer #6
No. If your employment contract with the beneficiary was “at-will” the beneficiary may leave your employ at any time provided he/she gives the required notice as indicated in the employment agreement. Additionally, at no time during the transfer is your consent or concurrence required.

Question #7 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
If we sponsor an employee and pay the associated legal fees and USCIS filing fees, can we consider those payments in their employment review/raise evaluation in subsequent years? I am trying to treat all employees fairly, and it seems odd that the company is required to pay legal fees for one employee, but not another who may have legal fees associated with divorce, child custody, or other legal matters which would also affect their ability to work.

Answer #7
I understand your frustrations; however, the H-1B nonimmigrant program is a program designed to allow foreign professional workers to work temporarily in the United States to help boost the economy and keep U.S. businesses at the top in terms of work productivity, developing new products, etc. When you speak of using the associated legal fees when determining employment reviews/raise evaluations, it is not fair to the H-1B worker who has been sponsored by you for the sole purpose of working for your company to then take those fees and hold them against them. To my knowledge, it is unlawful and the Department of Labor (DOL) would not look favorably over this issue. It may seem odd that you are required to pay for the foreign worker's legal fees and associated filing fees, but that is just an aspect of the United States Citizenship and Immigration Service (USCIS) and DOL’s partnership in the H-1B nonimmigrant program.

The other employees you are referring to in regards to divorce, child custody issues, those are personal in nature. Although they may affect an individual's ability to work, an employer has no legal obligation to pay those fees as those personal related issues and fees should not play into your employment reviews/raise evaluations. A job is a job and when performance reviews/raise evaluations are conducted, they should be based entirely on the ability/productivity and experience of the worker.

Question #8 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
No new H1B application will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum – for 3rd Party Consulting company. No new H1B extension/stamping will be approved, as per the new guidelines provided USCIS on Jan 08, 2010 memorandum – for 3rd Party Consulting company. If an employee has H1B approved or extension approved, and if he/she comes back to US from a vacation or from an emergency, he/she would be deported back to his/her home country from the Port of Entry (PoE) – for 3rd Party Consulting company. How is my company to remain in business?

Answer #8
Yes, the memo has made it more difficult to petition for 3rd party consultants; however, it is not impossible. We cannot generalize and say that no case will be approved; no extension will be approved; because you cannot generalize with the USCIS, you must look at each case and the evidence presented on a case-by-case basis. You are not required to put forth all of the evidence listed in the memo, but a majority of it to illustrate that there is a valid employer-employee relationship, and that you maintain CONTROL over the beneficiary, not actual control, but the RIGHT TO CONTROL.

The USCIS adjudicators are to take the memo as guidance, and are to adjudicate the petition based on a totality of the circumstances, not narrowly like you have mentioned. They are to take all of the evidence presented and determine whether a valid employer-employee relationship exists, and based on that determination, either approve or deny the non-immigrant visa petition.

When traveling, there is not much that we can do, as the Officers of Customs and Border Protection (CBP) have developed their own interpretation of the memo released on January 8, 2010. If a 3rd party consultant MUST travel, we would recommend that they have the following: at least two month’s worth of paystubs, a copy of the approved H-1B petition, an employment verification letter, approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity.

Question #9 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I recently got a new project in Washington DC. I will be working at a client in DC downtown and staying in northern Virginia. I have Pennsylvania labor filed on my H1B petition. Do I need to file a new labor in DC? If so can you guide me and my employer in filing labor in a new state?

Answer #9
According to the regulations governing the H-1B program, when you move to a new location outside of the geographical location listed on the original certified LCA, a new LCA as well as an amended petition must be filed with the USCIS. In summary, since your location change would be considered a "material change" in your previously approved employment, you would need to file a new LCA as well as the amended petition to stay within the regulations.

Question #10 – Employment Based Immigration – Green Card – LABOR/PERM
It seems like it’s taking a lot longer to conduct recruitment prior to filing the Labor application, what’s the issue?

Answer #10
As of January 1, 2010 the Department of Labor (DOL) federalized the process for obtaining Prevailing wage requests, which is the first step in the Labor process before recruitment can be conducted. We normally could obtain a prevailing wage request directly from the specific state workforce agency within a few days to a week. In addition to federalizing the process, the DOL made the process for obtaining the prevailing wages by electronic means as well as by requesting a prevailing wage through the U.S .mail. At this time, it is taking approximately 45-60 days to obtain a prevailing wage determination from the DOL. The determinations are issued on a first come, first serve basis.

MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, July 23, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

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

MVP Law Group's first "Question & Answer" Forum was launched on Friday, June 25, 2010. Please click here to review the questions received and answers provided.

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

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, or the new debate focused on Ending Birthright Citizenship, please do not hesitate to contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, July 9, 2010. Act now and submit your questions!

THANK YOU!

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 social work, “Case Manager."

The employer filed a LC which was accepted for processing on August 15, 2007. ETA Form 9089 indicated that the job had been advertised in the Baltimore Sun on 4/8/2007 and 4/15/2007, and posted on the employer’s website from 4/24/2007 to 05/08/2007. The CO issued an Audit Notification requesting among other things, the Employer’s recruitment documentation. The Employer responded by providing copies of original tear sheets, a printout from the Employer’s website, the Employer’s recruitment report, and two statements, one from the Employer’s Attorney and the other from the HR Vice President. The newspaper tear sheets consisted of two parts: (1) almost full facsimiles of classified pages dated 4/8/2007 and 4/15/2007 which were not legible and had the top and bottom cut off, but bear the publication date; and (2) enlargements of the advertisements specific to the Employer’s application, but only the 4/8/2007 enlargement specifically bore the date of publication and name of publication. Additionally, the employer’s printout of its company website posting did not indicate the dates of posting. Thereafter the CO issued a denial letter because the original tear sheets were not provided and the employer failed to provide dated copies of pages from the company website. The Employer thereafter requested reconsideration arguing that the tear sheets had been provided and were sufficient proof of publication under the regulations. It also argued that alternative evidence of web site posting was sufficient according to a “FAQ” posted by the OFLC. The CO issued a letter of reconsideration establishing that the denial was valid because the enlargement did not show the date of publication or the name of the newspaper used, and the employer failed to provide dated copies of its web posting.

PERM Regulation 20 C.F.R. § 656.17(e)(1)(ii)(B) controls and it provides that one of the additional recruitment steps an employer can utilize to advertise a professional occupation is to advertise the position on its own website. For an employer that advertises by posting the job opportunity on its own website, the advertisement “can be documented by providing dated copies of pages from the site that advertise the occupation involved in the application.” Furthermore, the OFLC website includes a response to a Frequently Asked Question (FAQ) stating that if an employer does not have a copy o the posting from its website, “the employer may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under penalty of perjury, to the posting of the job.” However, the FAQ states that such a submission does not guarantee that the CO will find such a submission to be adequate documentation of the posting on the website. In the present case, the statements of the Attorney and HR Vice President included with the audit response were not in affidavit form, nor attested to, and therefore could not be considered.

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

Matter of PSI Family Services, Inc.

*Over the past several months more and more labor certification cases have been denied for basic technical errors. It seems times have changed as they are interpreting the literal meaning of the regulations, denying cases on mere technicalities, the majority of which displayed no harm to the recruitment process/test of the U.S Labor market.

As a word of advice, do not engage in the PERM process alone, contact an Experienced Immigration Attorney to guide you through the process, so that your cases do not result in denials after all of the money and time you have invested in the process.

Question #1 - Employment Based Immigration – Green Card
I heard if there are quite a few cases between Feb 2005 and October 2005, USCIS staff can work on cases only up to available VISA numbers and once the numbers are consumed, then it could go back to Feb or March 2005 with the next VISA bulletin.
Hence to not to take any chances, I heard we could call them (USCIS) and provide details of our case so that based on first come first call, they would process and issue the GC.

Answer #1
You cannot call the USCIS to speed up the processing/issuance of your Green Card. Priority dates were established for this exact purpose. Each individual has a specific priority date which was issued to them when their Labor application was submitted to the Department of Labor (DOL). Only when the applicant’s priority date becomes current will the USCIS begin to process the applicant’s I-485 paperwork and thereafter may issue the Green Card.

Question #2 - Employment Based Immigration – Green Card (AC-21)
I have an approved I-140 filed by my previous company and they also submitted my I-485 back in 2007. I have since moved onto employment with another company on my EAD. Can I file AC21 Portability letter?

Answer #2
You may be eligible to file an AC21 106(c) Portability Request if the new position/duties are the same or substantially similar to the position/duties listed in your Labor application certified by the DOL.

Question #3 – Employment Based Immigration – Employment Authorization Document (EAD)/Advance Parole Document (AP)
My EAD and AP are expiring this year sometime. When is the earliest that I can file my renewal petitions?

Answer #3
According to the USCIS, you can petition for an EAD renewal no more than 120 days in advance of the expiration of your current EAD. For instance, if your current EAD card expires on October 16, 2010, the earliest you can file is on or after June 19, 2010.
According to the USCIS, you can petition for AP renewal no more than 30 days in advance of the expiration of your current AP or the USCIS will issue an RFE requesting your current AP document before issuing a new AP document.

Question #4 – Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I have vacation plans to go to India in the first week of July 2010. Can we file my H-1B extension petition prior to my leaving? Or can you hold it and file the case after I cross the border?

Answer #4
You may file your H-1B extension prior to your departure; however, unless you upgrade your case to Premium Processing, your vacation plans will need to be delayed. When you have a case pending with the USCIS, you CANNOT leave the United States, as they will interpret it as abandonment of your pending case. Additionally, you may not file a case while outside of the United States; you must be present in the U.S. when filing for Immigration benefits.

Question #5 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
I’d like to apply for an H-1B visa under the H-1B CAP. Is the H1B Visa Quota still available for the year 2010?

Answer #5
The H-1B 2010 CAP opened on April 1, 2009 and closed December 25, 2009. The H-1B FY2010 ran from October 1, 2009 until September 30, 2010. FY stands for Fiscal Year. 65,000 visas have already been allocated for FY2010.
The H-1B 2011 CAP opened on April 1, 2010 and is still OPEN. The H-1B FY2011 runs from October 1, 2010 until September 30, 2011. As of June 18, 42,100 visas are still available for FY2011.

Question #6 - Employment Based Immigration – Temporary Work Visas – H-1B Nonimmigrant Visa
One of our consultants is nearing his 6th year on H-1B visa status, but he has an approved I-140 filed by a different company. Is it possible to use that approved I-140 to get a three year extension with our company.

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

Question #7 – Family Based Immigration – Green Card – Marriage Based (K1)
Is there any type of restrictions on a 'conditional green card”? Once my wife gets her green card, can she travel (internationally)?

Answer #7
Yes, she can travel internationally provided the trip is less than 6 months out of the year. The restrictions are mostly just the time frame, given most GCs are issued for 10 years, they want to make sure at the end of the two (2) years, prior to renewal of the GC, that you are still in a legitimate marriage and that the marriage was not for fraudulent purposes. Once the two (2) years are over and the conditions are removed after she applies to remove them, she will receive a GC valid for 10 years.
Within 90 days of the two-year anniversary of obtaining conditional residence, you and your wife will be required to file a Joint Petition to Remove Conditions on Residence (Form I-751). Once the conditions are removed, your wife will officially have Lawful Permanent Residence in the US.

Question #8 – General
Please explain for me what “priority date becoming current” means? I filed under EB2 category.

Answer #8
In order for an individual to obtain an immigrant visa, a visa number must be available to you. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the State Department's monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. Currently, there is a backlog in the Employment-Based Second Preference (EB-2) category, which is the category you are being filed in. This means, that you must wait until a visa becomes available, until your priority date becomes current. When your priority date becomes current, you may file the I-485 application, but until then, you must wait.
Each month, the State Department issues the visa bulletin, usually in the middle of the month. When the bulletin is issued, it will provide information that will take effect on the first day of the following month. Depending on the availability of immigrant visas, the priority dates in each category and for each country can change each month. However, please note that the priority dates can also stay the same. They can move very slowly or progress by several months or years. They can move forward or backward. Therefore, there is no way to anticipate what the priority date will be in a future month or when a category will become current.
In addition to the above website, you can go to http://immigrationroad.com/green-card-tracker.php and track how many green card applicants are in front of you using your priority date and preference category.

Question #9 – Student Visa (F1) and Extension of OPT
Our company just enrolled in E-Verify, what documents are needed when applying for the OPT extension?

Answer #9
The interim final rule extends the maximum period of OPT from 12 months to 29 months for F- 1 students who have completed a science, technology, engineering, or mathematics (STEM) degree and accept employment with employers enrolled in U.S. Citizenship and Immigration Services' (USCIS') E-Verify employment verification program. Normally, the OPT extension process would need to be initiated at least 90 days before expiration of the current OPT.

The documents that are needed for the OPT extension are provided below:
• Completed original I-765 Application for Employment Authorization;
• Form I-765 Application fee of $340 USD check or money order made payable to “US. Department of HomelandSecurity”;
• Copy of valid Employment Authorization Document (EAD);
• Copy of ALL passport biographical information pages (including photo, birth date, expiration date). Passports must be valid for at least six months beyond end date of OPT;
• Copy of F-1 visa page or Form I-797: Change of status to F-1 approval notice;
• Copy of I-94 card (front and back);
• Copy of current SEVIS I-20 (pages 1 and 3);
• Copy of National University official transcript or a copy of diploma indicating level and program of study;
• Two U.S.-style passport photos (four recommended);
• Proof of your company’s enrollment in E-Verify.

Question #10 – General
Should my company enroll in E-Verify?

Answer #10
We have posted some articles on our H-1B Visa Lawyer Blog in recent months that may help answer your questions as to enrollment, procedures and other information. Several links have been provided below which: explain the program; provide a link to the website for enrollment, list the Dos and Don’ts of the program, and point out the potential drawbacks of the program.

What is E-Verify?

I-9 Employer Handbook

DOs and DONTS

Potential drawbacks

MVP Law Group would like to thank everyone who contributed a question or comment. We hope that the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, July 9, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

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

MVP Law Group is excited to announce the launch of our “Q & A Forum.”

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

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, or the new debate focused on Ending Birthright Citizenship, please do not hesitate to contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our first “Q & A Forum” will take place this Friday, June 25, 2010. Act now and submit your questions!

THANK YOU!

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for three alien workers for the position of “Senior Programmer Analyst."

The employer filed a LC which was accepted for processing on August 15, 2007. ETA Form 9089 indicated that the job duties consisted of “design, develop, plan, coordinate and implement advance software module components in complex computing environment. For specific skills, the employer required: C++, ASP, COM/DCOM, Scripting, Win NT/2000/98, UNIX, Oracle and VB. Thereafter, the CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation. The Employer responded by submitting copies of its newspaper advertisements, as well as the other required documentation. Thereafter the CO denied certification for several reasons: (1) the Notice of Filing did not contain the location of the job opportunity; and (2) the Employer did not provide adequate documentation of the mandatory print advertisements as requested. Specifically, the tear sheets submitted were not legible. The Employer responded by requesting reconsideration and submitted enlarged, legible copies of its newspaper advertisements. The CO issued a letter of reconsideration indicating that denial was proper because the advertisements contained additional job requirements not listed on the ETA Form 9089. Specifically, the newspaper advertisements stated that travel was required for the position.

PERM Regulation 20 C.F.R. § 656.17(f)(7) controls and it provides:

Advertisements placed in newspapers of general circulation or in professional journals must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

In the instant case, the advertisements stated that travel was required for the position, which was not listed on Form ETA 9089. In Summary, since the Employer did not include the travel requirement as a requirement for the position on ETA Form 9089, the Employer’s conditions of employment in its newspaper advertisement were less favorable than those offered to the Alien, in violation of 20 C.F.R. § 656.17(f)(7).

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

Matter of Xpedite Technologies, Inc.

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 “Property Real Estate and Community Association Manager.”

The employer filed a LC which was accepted for processing on December 8, 2008. On September 30, 2009, the CO denied the application because the Employer indicated on Form ETA 9089 that it placed its second advertisement on Craigslist, which the CO indicated was not a newspaper or a professional journal. The Employer thereafter requested reconsideration and in its request argued that it was denied due process because it had not been provided adequate notice of the regulatory violation.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it requires that an employer attest to having conducted recruitment prior to filing an application for permanent employment certification. The regulation goes on to provide that applicants involving both professional and non-professional occupations normally require the sponsoring employer to attest to having placed two print advertisements on two different Sundays in a newspaper of general circulation in the area of intended employment. In lieu of one of the Sunday newspaper advertisements, a sponsoring employer is allowed to place an advertisement in a professional journal. In the instant case, the Employer did not attempt to argue that Craigslist was a professional journal, but relied on the argument that it was denied due process because the CO raised an issue for the first time in its final decision, as the Employer based its reasoning on a series of pre-PERM BALCA decisions. Under the pre-PERM regulations, a CO would first issue a “Notice of Findings” (NOF) providing notice to an employer of any deficiencies upon which the CO proposed to deny certification. However, the PERM regulations eliminated the NOF/Rebuttal procedure. The Board found that the CO’s denial of the application without prior notice of the grounds for denial did not violate the PERM regulations.

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

Matter of WP Realty Inc.

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 professional position of “Key Accountant Manager/ICSD."

The employer filed a LC and ETA Form 9089 indicated that one of its recruitment steps was to advertise with its employee referral program from July 26, 2006 to September 30, 2006. The CO issued an Audit Notification letter on December 14, 2006 indicating that the reason prompting the audit was a foreign language requirement. The Employer responded to the Audit Notification with a package of materials. Thereafter the CO issue a denial letter on the sole ground that the Employer had failed to provide documentation of its use of an employee referral program consistent with the regulations. The employer requested reconsideration arguing that the audit notification had not been directed at the employee referral system and that a document explaining the company’s employee referral program was inadvertently omitted from the Recruitment materials. Although the document had been omitted, the employer further argued that it was not an omission in recruitment, which had been completed and reported on a timely basis. The document explaining the program and its incentives was included in the Employer’s Motion for Reconsideration. The CO issued a letter of reconsideration indicating that the Employer had failed to provide evidence of an Employee Referral Program that provided dated copies of the employer notice or memorandum advertising the program; specifically, documenting the incentives that would be offered to the employees.

PERM Regulation 20 C.F.R. § 656.17 (e)(1)(ii)(G) controls and it provides that when an employer files an application for permanent alien labor certification under the basic process for a professional position, the regulations require it to have conducted certain recruitment steps prior to the filing and be prepared to document those steps. One type of recruitment that may be used to support an application is use of an employee referral program with incentives. The way an employer can document this type of recruitment is “by providing dated copies of the employer notices or memoranda advertising the program and specifying the incentives offered”. In the instant case, the Employer’s attorney admitted that it inadvertently omitted the documentation describing the Employer’s employee referral system. However, it is simply not clear whether the CO was affirming the earlier denial based on the Employer’s incomplete audit response, or on the basis that the documentation provided by the Employer with its motion for reconsideration was inadequate under the regulations. Upon review of the entire record, BALCA stated that the Employer was in compliance with the requirements for an employee referral program and met all of the required steps in the PERM process.

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

Matter of Clearstream Banking S.A.

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, Laundry."

The employer filed a LC which was accepted for processing on October 25, 2005. ETA Form 9089 indicated that the State Workforce Agency (SWA) prevailing wage determination was $19.04 per hour and the foreign alien was being offered a wage of $19.04 per hour. The CO issued an Audit Notification letter requesting documentation of recruitment efforts. The Employer responded by providing a copy of its New York job order listing a range of $18.00 to $19.50 per hour. Thereafter the CO issue a denial letter because the job order listed a wage that was less than the wage offered to the Alien, and that was less than the prevailing wage. The Employer thereafter requested reconsideration arguing that it was their practice to compensate applicants according to their experience – the reason for the range, and that the offer of $19.04 per hour was offered to the Alien and to any American worker. The CO issued a letter of reconsideration establishing that the denial was valid because the low end of the range was less than the prevailing wage determination.

PERM Regulation 20 C.F.R. § 656.17(e) controls and it provides that most sponsoring employers are required to attest to having conducted requirement prior to filing an application for permanent employment certification. Among other requirements, the employer must have placed a job order with the SWA serving the area of intended employment. Furthermore, the employer must attest that the offered wage equals or exceeds the prevailing wage. In the instant case, the job order placed with the SWA states a wage range, the lower end of the wage range being $1.04 less per hour than the SWA’s prevailing wage determination. An employer can use a wage range in its printed recruitment efforts and in its notice of filing; however, the bottom of the range can be no less than the prevailing wage rate. BALCA stated that although the PERM regulations do not expressly state that the SWA job order must not state a wage lower than the PWD, the regulatory requirement that an employer attest to offering at least the prevailing wage and the statutory requirement that an employer pay 100% of the prevailing wage make it clear that the DOL will permit the use of wage ranges in recruitment only when the lower end of the range exceeds the prevailing wage rate.

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

Matter of Marcel Cleaners, Inc.

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.

The DOL has recently issued updated FAQs to assist employers and others. The FAQs provide that the Department will provide PWDs as quickly as possible, on a first in, first out order. They have advised that determination times will fluctuate as they work to centralize the process. Additionally, they recommend that requestors submit their prevailing wage requests at least 60 days in advance of the employers' initial recruitment efforts.

THE LATEST: Our office submitted an electronic PWD through the iCERT portal on March 8, 2010 and received the determination back on May 5, 2010. Clearly, PWDs are taking anywhere from 45-60 days to be issued by the DOL.

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.

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 “Production Worker."

The employer filed a LC which was accepted for processing on December 15, 2006. ETA Form 9089 indicated a requirement of three months of experience in the job offered and that the job opportunity’s requirements were normal for the position. The CO issued an Audit Notification letter requesting evidence of recruitment and other required documentation. The Employer responded by submitting copies of its newspaper advertisements, as well as the other required documentation. Thereafter the CO denied certification because the newspaper advertisements offered terms and conditions of employment less favorable than those offered to the Alien, in violation of 20 C.F.R. §656.17(f)(7). Specifically, the advertisements contained criminal background checks, not listed on Form ETA 9089. The Employer responded by requesting reconsideration stating that it was amending Form ETA to attest to its requirement for a criminal background check, the employer amended the form by changing the answer in section H-12 from “yes” to “no”. The CO asserted that by amending its response to “NO” in Section H-12, the Employer did not indicate that a criminal background check was required. The CO issued a letter of reconsideration indicating that denial was proper because the newspaper advertisements offered terms and conditions of employment to the U.S. worker that were less favorable than those listed on ETA Form 9089 for the foreign worker.

PERM Regulation 20 C.F.R. § 656.17(f)(7) controls and it provides:

Advertisements placed in newspapers of general circulation or in professional journals must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”

In the instant case, the advertisements contained a requirement for criminal background checks, which were not listed on Form ETA 9089. In Summary, the Employer did not amend its application to include this requirement, but instead changed its answer to question H-12, indicating that a job opportunity’s requirements were not normal for the occupation. This change did not cure the deficiency.

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

Matter of Noll Pallet & Lumber Co.

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.

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.

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.

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 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

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 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

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.

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.

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

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" »

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 “Computer Software Engineer, Applications."

The employer filed a LC on behalf of an alien worker and in June of 2007, thereafter the CO issued an Audit Notification letter requesting among other documents, its Notice of Filing. The Employer complied with the request; however the Notice of Filing failed to provide the rate of pay for the proffered position. In March of 2008, the CO issued a letter denying certification. In April of 2008, the Employer submitted an appeal to the Board, but failed to provide any argument as to the failure to provide the rate of pay. The CO issued a letter of reconsideration affirming the denial and provided that the grounds for denial were valid because of a violation of 20 C.F.R. § 656.10(d)(4), which requires that the Notice of Filing provide a rate of pay.

The CO then forwarded the case to BALCA. The Employer filed a Statement of Intent to Proceed, but did not file an appellate 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. § 656.10(d)(4) controls and provides that the Notice of Filing “must state the rate of pay (which much equal or exceed the prevailing wage entered by the SWA on the prevailing wage request form).” The purpose of the Notice of Filing is to implement the statutory requirement provided by Section 122(b) of the Immigration Act of 1990, which provides that “any person may submit documentary evidence bearing on the application for certification (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).” Here, the Employer’s Notice of Filing failed to provide the rate of pay and the Employer failed to provide any explanation as to its omission. The Board further provided that a failure to list the rate of pay wage in the Notice of Filing constitutes grounds for denial of 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 “Dietitian and Nutritionist."

The employer filed a LC on behalf of an alien worker in December of 2006, where the Employer indicated that it had based its recruitment on the requirements for a non-professional position. In August of 2007, 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 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 informed BALCA of its intent to proceed with an appeal, but did not file an appellate brief. The CO filed a 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 “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.