OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

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The Department of Labor (DOL) Wage and Hour Division has recently issued an H-1B Employee Questionnaire that covers issues dealing with H-1B employment such as wages and deductions, working conditions, termination, and more…

This questionnaire has been sent via email by the DOL to an H-1B Employee, and provides that its purpose is to determine whether the particular company is being compliant with the H-1B rules and regulations.

It also provides that receipt of the questionnaire does not imply that the particular company has violated any law. H-1B employees who receive the questionnaire via email are strongly encourage to promptly respond.

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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.
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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.

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

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

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On August 19, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of August 14, 2009, 45,000 H-1B cap subject nonimmigrant visa petitions have been accepted by USCIS. USCIS has advised that they will continue to accept petitions until the cap is reached. Additionally, USCIS reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.

Accordingly, qualifying applicants are still able to petition for an H-1B nonimmigrant visa either under the general cap, or as an applicant with an advanced degree. (i.e., U.S. Master’s degree)

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

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.

California Service Center

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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.

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The Department of State has released its latest Visa Bulletin. The September 2009 visa bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.

Click here to view the September 2009 Visa Bulletin.

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On July 31, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of July 24th, 2009, 44,900 H-1B cap subject nonimmigrant visa petitions have been filed. USCIS has advised that they will continue to accept petitions until the cap is reached. Additionally, USCIS reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.

Accordingly, qualifying applicants are still able to petition for an H-1B nonimmigrant visa either under the general cap, or as an applicant with an advanced degree. (i.e., U.S. Master’s degree)

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