H1B Visa Lawyer Blog

April 3, 2009

CGFNS Guidance on Educational Requirements for PT applicants

The Commission on Graduates of Foreign Nursing Schools (CGFNS) International is an internationally recognized authority on credentials evaluations and verification pertaining to the education, registration, and licensure of nurses and health care professionals worldwide. CGFNS International is a leader in the industry with extensive knowledge of the profession and over 30 years experience reviewing foreign education credentials. CGFNS was asked to provide guidance on its view of the educational requirements for applicants intending to fulfill the position of Physical Therapist (PT). However, the Department of Homeland Security (DHS) has stated that this guidance given by CGFNS International is not binding.

As a credentialing organization, CGFNS must first make an assessment of whether an alien’s education, training, licenses and experience are comparable with that required for an American health care worker of the same type. Secondly, the organization must determine whether a particular alien’s education, training, license and experience meet all applicable statutory and regulatory requirements for admission into the United States.

Analysis of Degree Requirements

April 2, 2009

BALCA upholds denial of Labor application – Employer failed to rebut NOF

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 Domestic Tutor. This LC was filed prior to the effective date of the “PERM” regulations.

The employer, a private household filed a LC on behalf of an alien worker in June of 2004. The requirements for the position were a high school education, four years of training as a domestic, and four years of experience in the job offered. In May of 2007, the CO issued a Notice of Findings (NOF) proposing to deny certification due to numerous defects in the application. First, the Director found that the job requirements were unduly restrictive in violation of the regulations, and as such were in excess of the requirements listed in the Dictionary of Occupational Titles (DOT). The DOT lists a specific vocational preparation (SVP) for this job as “over one month and up to three months” of combined education, training and experience. The CO instructed that this issue could be rebutted by one of two ways: (1) establish a business necessity for the job requirement, or (2) reduce the requirements to the DOT standard. Additionally, the CO determined that the documentation provided did not establish that the alien worker had the four years of training and four years of experience in the job prior to being hired. The CO provided that the employer could rebut this finding by: (1) documenting that the alien worker had the required training and experience at the time of hire; (2) submitting evidence that it is not presently feasible due to business necessity to hire a worker with less than the qualifications presently required for the job opportunity and demonstrate that the job as currently described existed before the alien was hired, or (3) amending or deleting the requirement. Another defect noted in the NOF was that the Employer had not documented that the alien worker had one year of full time experience performing the duties of the job offered in a domestic household as required by the regulations. The CO provided that this defect too could be rebutted by submitting specific information. Lastly, the CO identified that the wage offered in the application was $9.00 per hour, which was below the prevailing wage of $13.34 per hour. The CO informed the employer this defect could also be rebutted by: (1) amending the application and increasing the salary offer to at least 100% of the prevailing wage, or (2) submit alternative wage data. In its rebuttal, the employer stated that there was business necessity, that overwhelming evidence had been submitted to establish that the alien had the requisite experience at the time of hire, and amended the application to increase the salary to $14.00 per hour.

The CO stated that the Employer’s rebuttal evidence corrected the prevailing wage defect, but the Employer’s rebuttal was not sufficient to correct the other three deficiencies in the application. Thereafter, the CO issued its final determination denying certification because the Employer did not correct all deficiencies in its labor application. Subsequently, the employer requested BALCA review.

April 1, 2009

Illinois Act deemed invalid by U.S. District Court

by Kellie N. Lego

E-Verify is a federal program in which employers may voluntarily sign up electronically to be able to identify the employment eligibility of new hires against federal databases in a matter of minutes. How it works: An employer requests that a new hire complete Form I-9, and with the information provided on the form, and the documentation needed to prove eligibility, the employer manually enters the information into the E-Verify database. Two things may occur once this takes place: (1) the employer receives confirmation that the new hire is authorized to work in the United States; or (2) a tentative non-confirmation (TNC) is issued, indicating that the federal program cannot identify that the new hire is authorized to work in the United States. If a TNC is issued, the employer must provide the applicant with information and guidance on how to resolve the issue, and a secondary verification process must occur within ten days before a final determination is made on the applicant’s employment eligibility.

The State of Illinois created legislation in regards to the passage of the Employment Eligibility Verification Program, otherwise known as “E-Verify.” In summary, the Illinois Act provides that employers are prohibited from enrolling in any Employment Eligibility Verification System, including the Basic Pilot program, until the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases are able to make a determination on 99% of the tentative nonconfirmation notices issued to employes within three days, unless otherwise required by federal law.

At issue is whether the Illinois Act is invalid under the Supremacy Clause of the United States.

March 31, 2009

BALCA reverses denial of Labor Certification

by Kellie N. Lego

The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination

of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Plumber Helper.

The employer, a plumbing services company filed a LC on behalf of an alien worker in April of 2001. The application got caught up in the large number of pre-PERM backlog cases, and as a result the employer did not receive the Recruitment Instructions letter until February of 2007. The letter directed the employer to advertise the offered position in a newspaper of general circulation. The Employer placed an ad in the Houston Northwest Greensheet for the requisite period of time, and also placed an advertisement for the position online. In August of 2007, the director issued a Notice of Findings (NOF) to the employer indicating that the employer must submit proof of advertisement or the application would be denied. In September, the employer submitted a notarized proof receipt indicating that the employer had run the advertisement in the Greensheet. Thereafter, the CO issued its final determination denying certification because the Greensheet did not meet the definition of a newspaper of general circulation. Subsequently, the employer requested BALCA review. The employer indicated in its request that (1) it has used the Greensheet before for advertising purposes and forms were never returned or questioned, and (2) it asked to be permitted to re-advertise if the Greensheet was determined inadequate.

March 30, 2009

FYI – Clarification on H-1B Lottery System

by Kellie N. Lego

Many employers have been questioning whether the regulation governing the “lottery” system will apply to this year’s H-1B cap. The United States Citizenship and Immigration Service (USCIS) has provided that the lottery will apply this year. In accordance with the regulation, the USCIS randomly selects the number of petition’s necessary to reach the cap from petitions received on the final receipt date. This year, it has been confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the “lottery” will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the “lottery” is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009. All petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date.

If you have any further questions regarding the H-1B lottery system or the H-1B nonimmigrant visa in general, please contact our office.

March 27, 2009

Appeal of an Alien of Extraordinary Ability is rejected by Administrative Appeals Office

by Kellie N. Lego

The Administrative Appeals Office (AAO) recently considered the merits of the petitioner’s appeal on a de novo basis. Accordingly, the appeal was rejected, subsequent motions were rejected and the petition will remain denied.

There were several procedural errors made in the adjudication of this petition. The employment based immigrant visa petition was denied by the Director of the Vermont Service Center (VSC) on August 3, 2004. The petitioner filed a subsequent appeal on September 8, 2004. The director declined to treat the late appeal as a motion and forwarded the matter to the AAO. On October 11, 2005, the AAO rejected the appeal as untimely without rendering a decision as to the merits of the case. On November 9, 2005, the petitioner filed a motion to reopen the AAO’s rejection of his appeal. On June 6, 2006, the director dismissed the motion rather than forwarding it to the AAO for consideration. On December 12, 2007, the petitioner filed a motion to report the director’s decision dismissing his prior motion. The director forwarded the motion to the AAO. Although the issuing director shall have jurisdiction over the motion, given the directors errors throughout the proceedings, the AAO decided that they would consider the merits of the case on a de novo basis.

The issue on appeal is whether the petitioner properly filed the appeal. In order to properly file an appeal, the regulations provide that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. According to the facts, the appeal was untimely filed. Although the appeal was untimely, it did meet the requirements of a motion to reopen. The regulations specifically provide that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. Thereafter, the AAO considered the case themselves due to the prior errors committed in this proceeding.

March 26, 2009

GAO Report unveils significant vulnerabilities in the Department of State’s Passport Issuance Process

by Kellie N. Lego

The United States Government Accountability Office (GAO) conducted an investigation from May 2008 through March 2009 which showed that terrorists or criminals could steal an American citizen’s identity, use basic counterfeiting skills to create fraudulent documentation for that identity, and obtain a genuine U.S. passport from the Department of State (DOS). The GAO conducted their investigation by using “basic counterfeiting skills.”

The same GAO investigator was able to easily obtain four passports issued by the DOS under four different names. The first passport was applied for in a United States Postal Service (USPS) office in Virginia in July of 2008. The investigator used a counterfeit West Virginia driver’s license, and a counterfeit New York birth certificate, along with the passport application form. The first passport was issued 8 days after the application was submitted for review. The GAO investigator applied for the second passport in August of 2008 at the State’s regional Washington, D.C. passport issuing office. The GAO investigator used a genuine District of Columbia (DC) identification card obtained with fraudulent documentation, and a counterfeit New York birth certificate, along with the passport application form. Surprisingly enough, the passport was issued to the investigator that same day. In October of 2008, the investigator applied for another passport in a USPS office located in Maryland. The investigator submitted a counterfeit West Virginia driver’s license, and a counterfeit New York birth certificate. The submitted passport application contained the Social Security Number (SSN) of a fictitious 5-year-old child, which was obtained from a prior investigation. Once again, another passport was issued to the investigator based on the documentation submitted only 7 days later. The final passport issued as a result of this investigation was in December 2008 from a USPS office in Maryland. The investigator submitted a counterfeit Florida driver’s license, and a counterfeit New York birth certificate. The passport form contained the SSN of a deceased individual. And again, the passport was thereafter issued only 4 days after the documentation was submitted for review.

After the investigation, the GAO briefed DOS officials on the results. DOS officials admitted that the findings expose a major vulnerability in DOS’s passport issuance process. According to DOS officials, the department’s ability to verify information submitted by passport applicants is hampered by limitations to its information sharing and data access with other agencies at the federal and state levels. This is the same problem that was identified after the tragic events that took place on September 11, 2001, eight. Additionally, they said that they do not currently have the ability to conduct real-time verification of the authenticity of birth certificates presented by passport applicants, and to make matters worse, there are other difficulties with verifying the authenticity of drivers’ licenses.

March 25, 2009

USCIS released UPDATED Form I-9 EMPLOYER HANDBOOK

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) recently released the updated version of the Form I-9 Employer Handbook.

The handbook provides the basic steps involved with a new hire, including the forms that must be completed, what documents are acceptable and step-by-step directions on how to correctly complete Form I-9.

The handbook also explains the reason we have Form I-9 for employment eligibility, mentions unlawful discrimination and penalties for prohibited practices, and discusses the E-Verify online program component for interested employers.

March 24, 2009

Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) released its time report on March 18, 2009 with updated processing times for all types of cases accepted by its Office.

If you filed an appeal, please review the link below to determine the applicable processing time associated with your case.

Administrative Appeals Office

March 24, 2009

Updated Service Center Processing Times

by Kellie N. Lego

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on March 17, 2009 with processing dates as of January 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