H1B Visa Lawyer BlogThe United States Citizenship and Immigration Service (USCIS) National Benefits Center (NBC) Liaison Committee has identified that there is a problem with the interface tool for the “Case Status Online.” Not only has this problem caused much delay in the recording of new receipt numbers in the system, it has hampered the updating of status information for those cases already in the online system. The Liaison Committee stated that the issue was not limited to NBC filings, and that the problem has been recurring. The NBC Liaison Committee did not provide a time estimate of when they expected the interface to be fixed.
Legislation to Reform the H-1B Visa Program Introduced by Senators Durbin (D-IL) and Grassley (R-IA)
On Thursday, April 23, 2009, Assistant Senate Majority Leader Dick Durbin and Senator Chuck Grassley introduced the H-1B and L-1 Visa Reform Act. This bipartisan legislation would reform the current H-1B and L-1 guest worker programs to prevent abuse and fraud, and to protect American workers.
This legislation calls for a “good faith attempt” to solicit qualified American workers before hiring an H-1B guest worker. Accordingly, Employers would be prohibited from using H-1B visa holders to displace qualified American workers. Additionally, the bill calls for a prohibition against the blatantly discriminatory practice of “H-1B only” ads and would prohibit Employers from hiring additional guest workers if more than 50% of their workforce consisted of H-1B and L-1 visa holders.
To address the issues of fraud and abuse, the bill would allow the Department of Labor (DOL) to initiate investigations without a complaint and without the personal authorization of the DOL Secretary. In addition, the bill would allow the DOL to conduct random audits of companies that utilize the H-1B nonimmigrant visa program. Specifically, the bill calls for annual audits by the DOL for employers who employ a large number of guest-workers.
UPDATE – FY 2010 H-1B Cap Count
On April 20, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap. USCIS has received 44,000 H-1B nonimmigrant visa petitions. 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)
If you have any questions surrounding the H-1B nonimmigrant visa program, please contact our office.
In Lieu of Recent BALCA Decisions, a Message from the MVP Law Group, P.A.
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.
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 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.
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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 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.
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BALCA upholds denial of Labor application – Employer Did Not Comply with PERM Regulations
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.
BALCA upholds denial of Labor application – No On-Site Hire Exception to Advertising 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 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.
Updated Service Centers Processing Times
Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on April 16, 2009 with processing dates as of February 28, 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.
REMINDER to all U.S. Employers – Use Updated Form I-9
As of April 3, 2009, the United States Citizenship and Immigration Services (USCIS) indicated that U.S. employers should no longer be using outdated versions of Form I-9. The updated Form I-9 has been available in English and Spanish via the USCIS website since it was revised in February.
Instructions for completing Form I-9 have also been made available by the USCIS. Additionally, the USCIS has provided a 1-800 number that employers may use to order updated Form I-9 if they do not have online access.
If you need assistance in completing Form I-9, or are interested in conducting an in-house Form I-9 Audit, please contact our office for assistance.