H1B Visa Lawyer Blog

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.

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

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

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

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

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

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

The 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 Slitting Supervisor.

The labor certification application was accepted by the CO in October of 2005. A few months later, the CO issued an Audit Notification to the Employer. Among other items, the Audit requested a copy of the Notice of Filing used for the alien worker’s labor application. The Employer responded by complying with the request and sending the Notice of Filing. In October of 2006, the CO issued a denial letter on the grounds that the Notice of Filing failed to contain the appropriate CO’s contact information including the physical address. Thereafter the Employer submitted a request for reconsideration, and only included a notice of entry of appearance of a new attorney; no argument or other information concerning the grounds for denial were provided. In September of 2008, the CO issued a letter of reconsideration finding that the denial of labor certification was valid. The CO noted that the Employer failed to provide any information relating to the missing information on the Notice of Filing. The CO then forwarded the case to the Board. New counsel for the Employer filed a brief arguing that the failure to provide the address of the CO was harmless error and therefore denial based upon a typographical error was a denial of due process. Counsel also stated that when the Employer was made aware of the omission, he agreed to repost the Notice of Filing. The CO appropriately filed an appellate brief stating that the Board had ruled on the issue of failure to include the address of the appropriate CO on the Notice of Filing in a 2007 case.

Continue reading "BALCA upholds denial of Labor application – Employer failed to comply with Notice of Filing requirements" »

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

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

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

Accordingly, the CO properly denied certification.

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

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

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

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

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

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

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

Continue reading "BALCA affirms denial of Labor application - Employer Failed to Comply with Notice of Filing requirements" »

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Domestic Tutor. This LC was filed prior to the effective date of the “PERM” regulations.

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

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

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

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

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

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

Over 90,039 Labor certification applications were received between October 01, 2007 and September 01, 2008. Of those, 49,205 have been certified. Many are either still in the review process, undergoing an audit, on appeal, or have been denied.

The top 5 states of intended employment for these permanent labor certifications were California, New York, New Jersey, Texas, and Florida.

Alien beneficiaries representing 179 different countries were certified for permanent employment in the U.S. These alien beneficiaries were from India, Mexico, China, South Korea, Philippines, Canada, United Kingdom, Pakistan, Taiwan, and Ecuador.

The top job titles for those certified included Computer Software Engineers, Computer System Analysts, Computer and Information System Managers, Restaurant Cooks, Electronics Engineers, Market Research Analyst, Computer Programmers, Financial Analysts, Mechanical Engineers, Chefs and Head Cooks, and Electrical Engineers.

Although a new PERM Form 9089 has been created, implementation of the new form is delayed until Spring 2009. Until then, the existing Form 9089 will be accepted for Labor Certification.

Since the Department of Labor (DOL) issued a press release in June 2008 announcing it was auditing all of the PERM labor certification applications filed by the Fragomen law firm there has been much confusion for attorneys in regards to the PERM process. While there are still a number of areas left questionable, below are some Do’s and Don’ts based on the DOL’s pleadings.

• Do be prepared for DOL to audit how the employer received and reviewed the resumes if there is any hint this is an issue in the recruitment process.

• Do assist your clients without fear of DOL wrath when they have questions about whether an applicant is unqualified.

• Given DOL’s position on pre-screening resumes for the employer, it may well be a “best practice” for the attorney not to pre-screen.

• Be wary about the activities of paralegals at the worksite of an employer, acting as an agent of the attorney.

• Do continue to impose on the employer the overall requirement of good faith recruitment and evaluation of applicants.

It is important to note that the DOL confirmed in writing that the employer is not legally required to hire anyone recruited through labor certification recruitment. In other words, the labor certification is a test of the labor market and not a hiring program.

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 “Maid.”

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The employer mailed the Application for Permanent Employment Certification to the Chicago Processing Center. The CO accepted the application for processing on October 24, 2006, and then re-keyed the application into the Department of Labor’s ETA electronic system. Weeks later the CO wrote a letter to the employer that denied the employer access to submit a Form 9089 electronically until the employer submitted proof of a Federal Employer Identification Number (FEIN), proof of a business entity, and proof of a physical location. Subsequently, the CO issued a letter denying certification. The reason for denial was that the employer could not be verified as a bonafide entity. In requesting reconsideration, the Employer asserted that the denial was vague, pointed out that it was a private household and not a company, but ultimately failed to identify how it was verified as a bonafide entity. The employer submitted a passport and her most recent tax return and further argued that neither her nor her legal counsel were ever contacted regarding verification of the employer’s existence. After reviewing the request, the CO denied reconsideration. The CO stated that providing a Social Security number was not a valid substitute for a FEIN. The matter was referred to BALCA for review. In the employer’s brief, she based her argument on a denial of due process.

Upon BALCA review, it was determined that the regulations require the submission of a FEIN on ETA Form 9089 because the FEIN is used to verify whether an employer is a bona fide entity. The PERM regulations at 20 C.F.R. § 656.3 require that an employer possess a valid Federal Employer Identification Number (FEIN) whether they are a private household or a legitimate company. Case law further provides that the use of a social security number as a substitute for a FEIN is prohibited because the Internal Revenue Service (IRS) clearly requires employers to possess a FEIN in order to file tax forms for domestic household employees.

The employer asserted that she was denied due process; however, under the PERM regulations, an employer is given an opportunity to file for reconsideration. In issuing a denial to an employer, the CO shall identify the section or subsection allegedly violated, and the nature of the violation. In this case, the CO’s original denial letter was deficient because it failed to state that the employer needed to provide a FEIN to be verified as a bonafide entity. The CO’s letter had the potential to deny the Employer’s due process rights. However, the CO’s failure to describe the nature of the violation did not prevent the employer from obtaining a labor certification that should have been granted. The only evidence that the employer could have provided for the case to swing in its favor was evidence that the employer had a FEIN at the time she applied for labor certification.

From the record, it was clear that the employer did not possess a FEIN as she used her social security number as a substitute. As stated above, a FEIN is required even for domestic households. In this case, the employer’s failure to obtain a FEIN prior to filing for labor certification rendered her application deficient as a matter of law. Accordingly, although the CO’s original determination letter was deficient, the employer could not be deprived of something to which she was never entitled. The Board recommended that the employer obtain a FEIN and file a new application.

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

In the aforementioned case, the employer filed a LC on behalf of an alien worker. The significant facts of the case were: the alien signed the application on November 19, 2005; the employer’s attorney signed the application on December 13, 2005; the employer’s president signed the application on December 3, 2006; and the employer ran advertisements in a newspaper of general circulation on May 7, 2006 and May 14, 2006, and all of these facts were indicated within the application for labor certification. The CO denied certification because the advertisements used for recruitment did not occur within the requisite timeframe. The PERM regulations clearly state that advertisements for recruitment must occur at least 30 days, but no more than 180 days, prior to the date the application was filed.

The CO received request for reconsideration from the employer’s attorney. In response, the employer’s attorney submitted evidence indicating that advertisements were run in a newspaper and a journal for three consecutive days in June of 2005. Additionally, the employer’s attorney mistakenly had filed the labor application with the State Workforce Agency rather than directly with a federal Certifying Officer, and had to re-file with the latter. The employer’s attorney confessed error in the timing of the advertisements, but urged that they did in fact advertise, and did not receive any responses. The employer’s attorney alleged that the error was procedural. After reviewing the request, the CO denied reconsideration. The employer requested BALCA review.

Upon BALCA review, it was determined that the new rules of PERM were applicable to the present case. The PERM regulations require that ETA form 9089 be utilized rather than ETA form 750, and that applications be filed directly with a federal Certifying Officer rather than a State Workforce Agency. The employer had applied for certification for a non-professional position. Under the regulations, for a non-professional position, the employer must, at a minimum, place a job order and two newspaper advertisements within 6 months of filing the application. Unfortunately, the employer’s motion for reconsideration did not remedy the timing problem with the advertisements. Moreover, regardless of whether the employer’s advertisements were run in May 2005, June 2005 or would be run in May 2006, none of those dates fit within the requisite timeframe in support of a labor certification application filed under PERM. Additionally, the employer’s attorney requested equitable relief for its error in filing the pre-PERM application rather than the PERM application. BALCA denied equitable relief as the facts surrounding the case did not present a compelling case for the application of equitable relief. Accordingly, BALCA affirmed the final determination of the CO in denying certification for not complying with the new advertising rules for PERM.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the PERM filing date and vacated the Certifying Officer's (CO) denial of the application.

The employer, an independent school district filed a pre-PERM ETA form 750A application for permanent alien labor certification on October 24, 2004 for the position of Middle School Teacher. The work location was East Houston Intermediate School and the job description involved the language “teach middle school students…” Subsequently, on January 11, 2006, the employer filed a ETA form 9089 under PERM for the same Alien for the position of Elementary School Teacher. The work location for this application was Hilliard Elementary School, and the job description involved the language “teach elementary school students…” On the ETA form 9089, the employer indicated that it was seeking to utilize the filing date from the pre-PERM application, the date of October 24, 2004. Thereafter, the employer received a letter from the Dallas Backlog Elimination Center (BEC) in reference to the pre-PERM application. The BEC gave the employer several options to pursue. The employer responded by withdrawing 20 pre-PERM application, one of which was the present application, because applications had also been filed under PERM and were pending. In January, the following year, the employer received a letter granting certification on the PERM application. The date of acceptance was that of the newly filed PERM application, January 11, 2006. The employer requested that the CO reconsider the earlier pre-PERM application filing date. A request for additional information was issued to the employer, and the employer promptly replied. The CO subsequently denied the motion because the job descriptions, job titles, and job locations in the ETA form 750A and form 9089 were not identical. Regulations require that job descriptions be identical in order for the employer to retain the filing date from an earlier pending pre-PERM application. The CO forwarded the matter to BALCA for review.

Upon BALCA review, it was determined that the CO’s letter denying reconsideration stating that the application had been denied was clearly in error, and that there had been no intent to de-certify the application, leaving the remaining issue of whether the CO correctly determined the filing date for the PERM application.

The regulation at 20 C.F.R. § 656.17(d) clearly supports the CO’s decision not to retain the pre-PERM filing date. The regulation provides that employers who have filed applications prior to March 28, 2005, may…re-file such applications…without loss of the original filing date by: (i) submitting an application for an identical job opportunity…, (ii) withdrawing the original application…, and (iii) re-filing within 210 days of withdrawal of original application. To be clear, the regulations state that a job opportunity shall be considered identical if the employer, alien, job title, job location, job requirements and job description are the same as those stated in the original application. In this case, the employer had a different job title, job location and job description for each application that was submitted on behalf of the alien worker. Since the employer did not address the fact that the job location had changed in the motion for reconsideration, BALCA determined that for that reason alone, the CO was correct in finding that the applications were not identical. Although the job titles and descriptions may have been similar, they were not identical; the regulations require them to be identical in order to grant the request of the employer.

Accordingly, BALCA affirmed the determination of the CO that the filing date shall be the date that the PERM application was accepted for processing, January 11, 2006.

The Board of Alien Labor Certification Appeals (BALCA) recently upheld the final determination
of a Certifying Office (CO) denying labor certification (LC) for an alien worker for the position of “Home Health Aide.”

In the aforementioned case, the employer, a private household filed a LC on behalf of an alien worker. The CO denied certification of the application on four grounds. The PERM regulations require that employers file completed applications for Permanent Employment Certification. The employer failed to make selections for the following questions on the ETA Form 9089: Section C-6 (Year commenced business); C-7 (Employer FEIN); F-3 (Skill level); and K-5 (Job 3 title). Subsequently, the Employer filed a request for reconsideration. In requesting reconsideration, the Employer asserted that she completed Sections C-6 and C-7 and no further information or explanation was given. After reviewing the request, the CO denied reconsideration. The CO stated that the employer’s request for reconsideration did not overcome all deficiencies noted in the determination letter. The employer requested BALCA review.

Upon BALCA review, it was determined that the employer offered an incomplete ETA Form 9089. The PERM regulations at 20 C.F.R. § 656.17(a) require that an “employer who desires to apply for a labor certification on behalf of an alien must file a complete Department of Labor Application for Permanent Employment Certification form (ETA Form 9089). Further, the regulations state that “incomplete applications will be denied.” In this case, the omissions on ETA Form 9089 were material and the employer failed to correct them by offering documentation in her request for reconsideration to establish compliance with the regulations. The Employer clearly failed to obtain a Federal Employer Identification Number (FEIN) and to complete Sections F-4 and K-5 of the application. Accordingly, BALCA affirmed the final determination of the CO in denying certification for not submitting a completed application for labor certification.

In light of the Fragomen audit, the Department of Labor (DOL) has recently issued many documents on the topic of attorney/agent consideration of U.S. workers under the permanent labor certification program . Attorneys/agents and foreign workers do not have a designated role in the PERM recruitment process. It is the responsibility of the DOL to ensure that no foreign worker obtains a certified labor application based on an employment offer if there are U.S. workers that are able, willing, qualified and available to fill the proffered position. Additionally, an employer must make an attestation that if admitted; the foreign workers will not adversely affect the working conditions of similarly situated U.S. workers.

The purposes of the documents issued by the DOL are to clearly define and regulate the role of an attorney/agent in the consideration of U.S. workers under the PERM program. The DOL has long held the view that good faith recruitment requires that an employer’s process for considering U.S. workers who respond to certification-related recruitment closely resemble the employer’s normal consideration process. In most situations, the normal hiring process does not involve a role for an attorney/agent in assessing the qualifications of the applicants. The DOL has clearly specified the types of actions prohibited by attorneys/agents under the regulations, which include: (1) receiving resumes and applications of U.S. workers who respond to the employer’s recruitment efforts; and (2) participation in the interviewing of U.S. worker applicants. However, if the attorney/agent is the representative of the employer who routinely performs this function for positions for which labor certifications are not filed, then the attorney/agent may act accordingly. In addition, the attorney/agent may provide advice throughout the consideration process on any and all legal questions concerning compliance with governing statutes, regulations and policies. It is the sole responsibility of the employer to conduct recruitment in good faith.

If the DOL finds evidence of improper attorney, agent or foreign worker involvement in the recruitment/consideration process, the DOL will audit and may subsequently require supervised recruitment to further investigate the employer’s recruitment efforts or potential debarment from immigration related programs.

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

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

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

The Board of Alien Labor Certification Applications (BALCA) recently affirmed the final determination of the Certifying Officer (CO) denying labor certification.

In the present case, the petitioner (employer), a plumbing and compacting installation service filed an application for labor certification for the position of Plumber on behalf of a foreign alien beneficiary. Following recruitment, the employer filed a recruitment report in which it rejected five U.S. applicants. Only two of the applicants’ qualifications are questioned on appeal. According to the recruitment report, Applicant 1 was rejected because his resume indicated that he did not possess any U.S. experience as a plumber, and the employer thereafter assumed that he/she obviously had no knowledge of state and city plumbing codes, a job requirement for the proffered position. Applicant 2 was rejected because the applicant’s experience as a Plumber dated from the period of 1978 to 1984, after which he/she only worked as a Supervisor to several plumbers and helpers. The Employer stated that they desired the services of a raw plumber not a supervisor.

After thorough review of the documentation presented with the application for labor certification, the CO issued a Notice of Findings (NOF) proposing to deny certification. The CO noted that the employer unlawfully rejected applicants 1 and 2 based on resumes alone. With Applicant 1, it was not altogether established that he/she was not familiar with applicable New York (NY) plumbing codes and specifications and an interview would have clearly established the Applicant’s qualifications for the proffered position. The 2nd Applicant was rejected solely because he was overqualified according to his resume. In response to the NOF, the employer filed a rebuttal letter indicating why Applicants 1 and 2 were not further interviewed. The employer argued that the first applicants resume did not indicate any plumbing experience in NY, and there was no reason to assume that his home improvement experience in NY involved any plumbing. Accordingly, under those circumstances, the employer felt that he was not obliged to interview the applicant. In regards to Applicant 2, the Employer relied upon the applicant’s present occupation and stated that no one willing regresses in their career; therefore the applicant cannot be considered to be willing to be available and willing for the job of raw plumber. Thereafter, the CO issued a final determination denying certification. The CO indicated that the relevant standard in determining whether a resume merits further investigation is whether or not there is a reasonable possibility that an applicant may meet the employer’s minimum requirements despite an apparent shortcoming on the applicant’s resume.

Upon BALCA review of the record, it was determined that the resumes of Applicants 1 and 2 raised the reasonable prospect that they were capable of performing the job offered. Accordingly, the employer had the duty to interview the applicants or verify their qualifications in some other manner other than just making assumptions based on their resumes. Since the employer rejected the applicants without interviewing them or otherwise verifying their qualifications or lack thereof, the CO properly denied certification. The burden of proof was with the employer, although the employer attempted to shift the burden to the CO, the employer was unable to satisfy the burden and accordingly the certification was denied.

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

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

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

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

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.

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

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

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

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

No matter what avenue you take towards permanent resident status (“green card”), whether it is family-based petition, employment-based petition, or diversity visa based, the priority date of your petition determines the order of visa availability for each particular category.

Priority Dates for Family-Based Petitions

For family based petitions, the priority date is established when the I-130 form (Petition for Alien Relative) is filed with the U.S. Citizenship and Immigration Services (USCIS). If an I-130 petition is denied because of ineligibility and then later resubmitted when eligible, the priority date is established at the time of resubmission of the petition. Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992).

Priority Dates for Employment-Based Petitions

For employment-based immigration petitions, the priority date is set either on the date that a labor certification is filed (EB-2 and EB-3 categories require labor certification); or for categories that do not need a labor certification (EB-1, EB-4, and EB-5) on the date that the preference petition if filed with the USCIS.

Transferring priority dates from a prior employment-based petition to a subsequent new employment based petition

Employment-based priority dates in the first three preference categories (EB-1, EB-2, and EB3) are transferable within those categories. For instance, if one files an EB-3 based labor certification and has an approved I-140 (Immigrant Petition for Alien Worker) for that category, that individual can subsequently file a labor certification in the EB-2 category and request that the priority date from the EB-3 petition be retained when filing the I-140 for the EB-2 petition. However, it is important to note that priority dates are not transferable from EB-1, EB-2, and EB-3 cases to any EB-5, EB-5, and family based petitions.

Priority dates for derivative beneficiaries (Spouses/Children)

Spouses and children of the primary beneficiary of both employment-based and family-based petitions are assigned the same priority date as the primary beneficiary as long as the marriage still exists and the children are under the age of 21 pursuant to the Child Status Protection Act. However, there are some exceptions to this rule. For instance, the child of a person who marries a U.S. Citizen must be the beneficiary of a separate petition by the parent beneficiary or, where applicable, the petitioning step-parent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Continue reading "Maintaining PERM AUDIT Files" »

The employment based permanent residency or “green card” process is a three step process. The first step in this process is called Labor Certification. As of March 28, 2005 all Labor Certification applications are filed through the online PERM process. The Since April of 2007, immigration attorneys have reported a significant increase in the number of PERM audit notifications issued by the US Department of Labor (DOL).

PERM audits are either randomly issued or are triggered by mechanisms installed in the PERM program by the DOL. In order for an employer to file a successful labor certification application, a U.S. employer must establish that no U.S. workers (either U.S. citizens or permanent residents) were available for the position. The DOL requires U.S. employers to conduct a recruitment campaign prior to filing a PERM based labor certification application. If the DOL deems the U.S. employer’s job requirements to be excessively restrictive to U.S. workers, an audit request is issued. In most instances, an audit will be triggered if an employer’s job requirements do not comply with the Department of Labor’s specific vocational preparation (SVP) guidelines as set forth in the O*NET. For example, if the DOL has set a SVP of “7<8” for the software engineer position. According to the DOL’s SVP guidelines, the maximum vocational preparation for this position is 4 years. The DOL equates a bachelor’s degree to 2 years of vocational preparation and a master’s degree to 4 years of vocational preparation. Therefore, if an employer’s requirements for a software engineer exceed either a bachelors degree in the field and 2 years of experience or a masters degree in the field an 0 years of experience, the requirements would be considered excessive by the DOL.

The majority of the recent PERM audits are a direct result of employer’s exceeding the DOL’s SVP requirements. Most of these audits require employers to establish “business necessity” for the job requirements exceeding the SVP. In accordance with Matter of Information Industries, 88-INA-92 (BALCA Feb. 9, 1989) and 20 CFR § 656.17(h), "To establish a business necessity, an employer must demonstrate the 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." Therefore, when responding to business necessity related audit requests, the employer must provide the DOL with evidence that proves that the employer’s requirements bear a reasonable relationship to the occupation and are essential to perform the job in a reasonable manner. The employer could include evidence of its past hiring practices and describe its operations in detail to justify that the requirements are needed to perform the duties of the position to fulfill the employer’s business needs.