H1B Visa Lawyer Blog

July 23, 2009

BALCA upholds denial of Labor Certification – Newspaper Advertisement omitted Employer’s Name

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.

July 22, 2009

E-Verify Employer DO’S and DON’TS

by Kellie N. Lego

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

July 21, 2009

BALCA upholds denial of Labor Certification – Failure to provide documentation requested in Audit Notification Letter

by Kellie N. Lego

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.

July 20, 2009

BALCA upholds denial of Labor Certification – AUDIT: Failure to provide Recruitment Report

by Kellie N. Lego

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.

July 16, 2009

Updated Service Centers Processing Times

by Kellie N. Lego

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on July 15, 2009 with processing dates as of May 31, 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

July 13, 2009

August 2009 Visa Bulletin

by Kellie N. Lego

The Department of State has released its latest Visa Bulletin. The August 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 August 2009 Visa Bulletin.

July 9, 2009

LATEST UPDATE – FY 2010 H-1B Cap Count

by Kellie N. Lego

On July 8, 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 3rd, 2009, 45,000 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)

July 8, 2009

Form I-9 Remains Valid beyond 6/30/09 expiration date

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) recently announced that the 2/2/09 revision of Form I-9, which is currently located on the USCIS website will remain valid until futher notice. The version of the form currently on the website was set to expire on June 30, 2009.

If you have any questions regarding Form I-9 and your business, please contact our office.

July 7, 2009

Clarification as to the FCCPT’s substantial equivalency of foreign-educated Physical Therapists (PT)

by Kellie N. Lego

The Foreign Credentialing Commission on Physical Therapy (FCCPT) issued a letter clarifying its educational equivalency for foreign educated Physical Therapists in February of 2009. Recently, there has been much confusion over the issue.

The FCCPT is the only entity authorized by the United States Citizenship and Immigration Service (USCIS) to issue such certificates, which verify that a foreign applicant has acquired an education substantially equivalent to the US standard in education of physical therapists.

In summary, the letter provides that when the FCCPT issues a Type 1 Comprehensive Credentials Review Certificate, it is asserting that the applicant has acquired at least a Master’s degree or higher in Physical Therapy, as required under the regulations.

July 6, 2009

BALCA vacates CO’s denial of Labor Certification involving Employer’s FEIN

by Kellie N. Lego

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.