USCIS to Issue Guidance on H-1B Cap-Exemption for Teaching Hospitals

March 8th, 2011

Recently, in an unpublished decision, the AAO found that a nonprofit hospital that provided training to students in the medical field did not qualify for H-1B cap exemption for nonprofits affiliated with institutions of higher education.  It narrowly defined affiliation as requiring either joint control or ownership.  This will have an overwhelmingly deleterious effect on our health care system in light of the shortage of physicians in the US.  In response, Senator Kerry from Massachusetts and several other Senators wrote letters to USCIS requesting clarification on USCIS’s policy towards nonprofit hospitals seeking cap exemption and emphasizing the dire consequences of denying such exemption.  USCIS has responded by stating that it expects to issue a clarification to its policy this week.  We all await with bated breath.

BALCA Finds Fax Confirmation of Job Order Fails PERM Recruitment Requirements

March 8th, 2011

In Matter of Bettina Equities Co, 2010-PER-00151 (March 4, 2011), BALCA held that a fax confirmation of a job order and follow-up letter to the DOL does not satisfy the PERM requirements of proof of publication of a job order pursuant to the audit response requirements of 20 CFR §656.20(b) and the recruitment requirements of 20 CFR §656.17(e)(1)(i)(A).  According to 20 CFR §656.17(e)(1)(i)(A), as part of the mandatory recruitment process under PERM, the employer must place a job order with the SWA serving the region of intended employment for 30 days.  In this case, as proof of such job order placement, the certifying officer (CO) required that the employer provide a printout from the SWA website showing the job order, a copy of the job order from the SWA or other documentation showing the publication of the job order along with the content of the job order.  However, the employer responded to the audit by providing a job order form and a fax confirmation sheet.  BALCA held that these documents did not prove that the job order was published by the SWA and affirmed the denial of the labor certification application.

BALCA also held that the failure of the employer to adequately respond to the audit was not harmless error under Health America, 2006-PER-1 (July 18, 2006)(en banc). In this case, BALCA upheld a PERM labor certification where there was only a typographical error.  BALCA distinguished the instant case by finding that the employer failed to satisfy the regulatory PERM recruitment requirements in responding to the audit.