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.
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)
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.
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 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 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 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 Office of Special Counsel for Immigration-Related Unfair Employment Practices has recently comprised a list of various DO’S and DON’TS for Employers when utilizing the E-Verify program.
DO…use E-Verify on all NEW employees, after they have completed Form I-9
DO…post required notices of the Employer’s participation in E-Verify DO…secure the privacy of Employee’s personal information
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 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.
H1B Visa Lawyer Blog