Gearing up for H-1B Cap Cases for 2012

February 17th, 2011

It is time for us to prepare for a new round of H-1B petitions filed pursuant to the cap.  The opening date is April 1, 2011, and the earliest start date is October 1, 2011.  If the economy continues to be depressed, then it is not likely that the cap will be reached within a day or a week, like several years prior.  Will it take until December 2011 for it to be reached?  Who knows, but the rate of cap usage is certainly indicative of the state of the economy, especially from this immigration law office.  I am recommending that petitioners still file as early as possible to ensure that they get an H-1B visa number.

BALCA Decisions on PERM Labor Certification Applications

February 17th, 2011

Recently, BALCA has decided a number of cases clarifying regulations surrounding the PERM labor certification application.  Such case law is helpful in providing clear instructions to the otherwise general guidelines provided in the Code of Federal Regulations, the latter of which has created guesswork for immigration attorneys and employers attempting to comply with the plethora of PERM rules.  The following is a summary of these cases from American Immigration Lawyers Association (AILA) website (Infonet):
 
1. Web ads:  BALCA found that the employer’s job search web advertisement met the requirements of 20 CFR §656.17(f) where the search results listed the employer as “confidential” but the name of the employer was disclosed in the advertisement itself. (Matter of Dr. Deza, 2/11/11)
2. Job order:  BALCA upheld the denial where the SWA job order contained a requirement not included on the ETA 9089, reasoning that a job order is the functional equivalent of a newspaper ad and is subject to 20 CFR §656.17(f)(7). (Matter of Hayward Unified School District, 2/10/11)
3. Application without alien’s signature:  BALCA affirmed the Certifying Officer’s denial and rejected the employer’s argument that he was forced to submit the application without the alien’s signature because the alien currently works in a rural region with limited mail service.
4. Recruitment report & employee referral program:  BALCA found that the recruitment report, showing that more than 90% of the applications received came from the employee referral program (ERP), was adequate documentation of the ERP as a method of recruitment notwithstanding the lack of a date on the notice of the program.
5. Standard for employee referral programs:  For employee referral programs, an employer must document 1) the program offers incentives to employees for referral; 2) the program was in effect during the recruitment period; and 3) the employees were on notice of the job opening. (Matter of Sanmina-Sci, 1/19/11)
6. Prevailing wage determination outside the time period:  Where the employer lost the original prevailing wage determination (PWD), BALCA concluded that a new PWD obtained outside the applicable time period does not cure the error of failure to retain documentation under 20 CFR §656.10(f). (Matter of Apollo Consulting, 1/12/11)
7. Evidence of website recruitment:  BALCA upheld the CO’s denial, finding that the website print-out did not comply with the regulation requiring dated copies of the posting, and that the statement of the company official did not comply with the format specified in the FAQ. (Matter of EZChip, 1/12/11).  BALCA held that where the snapshots from the website are not available, the employer may submit a snapshot from one day along with an affidavit evidencing the period of posting of the website ad and containing a clear statement that the affidavit is from an official within the employer’s organization responsible for the posting of such occupations on the website. 

8.  SWA Job Order:  BALCA remanded the case for certification, finding that 20 CFR §656.17(e)(2) only calls for “placement” of an SWA job order, and that the CO’s request for documentation that the job order was actually run was unreasonable. (Matter of Mandy Donuts, 1/7/11)
9.  Application of HealthCare of America:  BALCA held that the CO erred in refusing to consider evidence of website postings submitted with the employer’s request for reconsideration where the documents were held by the employer under the PERM record-keeping provisions. (Matter of Hawthorne Suites, 1/12/11)

It is clear that BALCA is generally providing an expansive and liberal attitude toward the PERM regulations, in keeping with the spirit of Healthcare of America, which places substance over procedure and does not allow the DOL to deny certification for minor errors that don’t affect the outcome of the recruitment.  This is certainly a welcome development, along with the speed of processing of recent PERM labor certifications.  It’s quite ironic that in this sagging economy, the DOL is not auditing more cases and demanding to see recruitment results, but let’s not look the gift horse in the mouth!