H1B Visa Lawyer Blog

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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: PERM - Labor Certification

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

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , PERM - Labor Certification

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

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: BALCA Decisions , PERM - Labor Certification

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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.

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Posted In: BALCA Decisions , Employment Based Immigration , PERM - Labor Certification

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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.

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Posted In: Amendments to H-1B Petitions , H-1B Audits , H-1B Cap , H-1B Visa , H-1B Visa , Investment Based H-1B Visa , PERM - Labor Certification

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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.

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Posted In: Employment Based Immigration , I-140 Issues , PERM - Labor Certification

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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.

Posted by Meetesh V. Patel | Permalink | Email This Post

Posted In: Child Status Protection Act ("CSPA") , Family Based Immigration , PERM - Labor Certification

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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

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