H1B Visa Lawyer Blog

October 23, 2008

BALCA vacates Final Determination and remands for proper procedures to re-advertise

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 “Fabric and Apparel Patternmaker.” This LC was filed prior to the effective date of the “PERM” regulations.

In the aforementioned case, the employer, a garment manufacturer and wholesaler filed a LC on behalf of an alien worker in February of 2003. In the application, the employer required two years of experience in the job offered. In the Notice of Findings (“NOF”) issued in June 2007, the CO found that the Employer’s advertisement did not meet the criteria for certification because the advertisement did not state the minimum job requirements that appeared on Form ETA 750, Part A. On the LC, the job requirements included two years of experience with no formal education required. Whereas, the advertisement; however, listed the requirements for the job as “2 years exp/AA degree.” The CO stated that it was unduly restrictive to advertise for job requirements in excess of those that were specified on the original LC. To respond to the NOF, the CO stated that the Employer was required to provide a copy of the advertisement and internal posting notice that was placed during the 30 day recruitment period. Additionally, the CO stated that the advertisement must reflect the same job requirements that were stated by the Employer on ETA Form 750-A. In response to the NOF, the Employer submitted a rebuttal which explained that the additional education requirement was a clerical error made at the Employer’s law firm. To rectify the mistake, the Employer drafted another advertisement and ran the new advertisement for three days in June of 2007. Subsequently, the CO issued a Final Determination in July of 2007. In the Final Determination the CO found that the Employer’s rebuttal evidence did not correct the deficiencies raised in the NOF. Specifically, the Employer re-advertised without permission or obtaining further instructions. Thereafter, the matter was referred to BALCA for review. In its request for review, the Employer argued that the NOF did not state that permission to re-advertise was required, nor did it state when or how to obtain permission to re-advertise.

Upon BALCA review, pursuant to the regulations at 20 C.F.R. § 656.25(c), if a CO does not grant certification, an NOF must be issued which states: (1) the date on which the NOF was issued; (2) the specific grounds for issuing the NOF; and (3) the date by which a rebuttal must be made. Specifically, the NOF must give notice which is adequate to provide the employer an opportunity to rebut or cure the alleged defects. An adequate notice of deficiencies should identify the section or subsection allegedly violated, the nature of the violation, the evidence supporting the challenge, and instructions for rebutting or curing the violation.

October 8, 2008

The E-3 Australian Professional Visa

by Kellie N. Lego

The E-3 visa is a visa granted to Australian professionals for specialty occupations. The procedure of obtaining an E-3 visa is very similar to that of obtaining an H-1B visa; however, not everything is similar.

The requirements to obtain an E-3 visa are the same as those for an H-1B visa, with one difference; they include the attainment of a bachelor’s degree or higher and a job offer in a field of highly specialized knowledge, and most importantly the individual must be an Australian citizen. All of the forms used for an H-1B filing, are utilized in an E-3 filing; specifically, the LCA, and Form I-129.

With an E-3 visa, the validity period may only be granted for a term of two years; whereas, with the H-1B, the validity period is for a term of three years. Additionally, there is no automatic extension of work authorization while an E-3 visa extension application is pending. Individuals in E-3 status are not covered by 8 CFR 274a.12(b)(20), which provides authorization to continue employment with the same employer while a timely filed application for extension of stay is pending. Premium processing also does not apply to E-3 visa holders. Therefore, E-3 extensions of stay should be filed a full six months ahead of expiration. If an extension of stay application is pending when an individual’s current E-3 status expires, they must be taken off payroll until the petition is approved.

October 7, 2008

John McCain and Barack Obama on IMMIGRATION

by Kellie N. Lego

Republican Presidential candidate John McCain and Democratic Presidential candidate Barack Obama may not see eye-to-eye on a majority of the issues; however, on the issue of immigration, they share more similarities than differences.

Securing our borders is the first priority in both a McCain and Obama administration. Senator Obama and Senator McCain want to preserve the integrity of our borders. Both candidates believe in setting clear guidelines and objectives for securing the border through physical and virtual barriers.

Comprehensive Immigration Reform is another priority both senators intend to carry out in their administrations. They believe in fixing the dysfunctional immigration bureaucracy, keeping immigrant families together, and meeting the demand for jobs with foreign workers and U.S. workers. Both candidates have considered raising the cap on the number of H-1B visas issued annually. They also plan to crack down on employers that abuse the immigration system, specifically; McCain stated that he would aggressively prosecute employers that continue to hire illegal immigrants. Both candidates emphasized the use of the E-Verify system which is already in use by the Bush administration, but not a mandatory tool at this time. They also plan to clear out the backlog of individuals that have been waiting legally outside the country for years for their green card number to become available.

October 6, 2008

BALCA upholds denial of LC for failure to obtain Federal Employer Identification Number (FEIN)

by Kellie N. Lego

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.

October 2, 2008

APPLY TODAY for the Diversity Visa (DV) Lottery – ONLY ONLINE ENTRIES ACCEPTED

by Kellie N. Lego

Annually, the United States government issues a maximum of 55,000 green cards through a computer-generated random lottery drawing. Applications for the DV 2010 random lottery will be accepted October 2, 2008 through December 1, 2008. Paper entries will not be accepted, eligible participants may access the electronic Diversity Visa entry form (E-DV) to apply during this period.

These green cards are only available to those eligible participants from countries with low rates of immigration to the United States. For DV-2010, persons born in Hong Kong SAR, Macau SAR, Taiwan, Russia and Kosovo are eligible. No countries have been removed from the list of eligible countries for DV- 2010.

Natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the U.S. in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Philippines, Peru, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

October 1, 2008

Update on Pending FBI Name Checks and Projected Naturalization Processing Times

by Kellie N. Lego

The United States Department of Homeland Security’s (DHS), United States Citizenship and Immigration Services (USCIS) Ombudsman issued a press release informing the public about the status of FBI name checks and the projected processing times for applicants filing for Naturalization . The Ombudsman is an independent office of DHS which reports directly to the DHS Deputy Secretary. The Ombudsman is responsible for assisting individuals and employers in resolving problems with the USCIS and identifying areas in which individuals and employers have problems in dealing with the USCIS.

FBI name checks are just one of several security screening tools used by the USCIS for individuals seeking immigration benefits in the U.S. The USCIS Ombudsman had identified FBI name check delays at one of the major hurdles to improved customer service at USCIS in his 2008 and 2007 Annual Reports to Congress. Fortunately, Congress responded and provided the necessary funding for USCIS and the FBI to complete a larger percentage of FBI name checks in a timely manner. USCIS met its April 2, 2008 goal by processing all name checks pending more than two years by July 2008. As of August 12, 2008, there were 95,449 FBI name checks pending, compared to 269,943 name checks pending as of May 6, 2008. Additionally, there were 61,817 name checks pending more than six months, compared to 185,162 pending for more than six months as of May 6, 2008. Although there is a sufficient backlog still to be processed, the USCIS is significantly making progress in an effort to improve service for those seeking U.S. immigration benefits.

According to the USCIS, naturalization application processing will take an average of 10-12 months nationally by the end of this month. Previously, USCIS estimated processing times of 16-18 months, then 14-16, then later to 13-15 months. The delay in processing is due to the enormous amount of applications that were submitted during the summer of 2007. Three million naturalization applicants were submitted to the USCIS compared to the 1.8 million submitted the previous year. Overall, the USCIS seems to be making considerable progress compared to past years.

September 30, 2008

BALCA upholds denial of LC based upon failure to comply with PERM advertising rules

by Kellie N. Lego

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.

September 29, 2008

BALCA affirms PERM filing date and vacates CO’s denial of the application

by Kellie N. Lego

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.

September 26, 2008

BALCA upholds denial of LC based on submission of Incomplete Application

by Kellie N. Lego

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.

September 25, 2008

The Role of Attorneys/Agents in the PERM Recruitment process

by Kellie N. Lego

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.