BALCA Finds Must Use Higher of Two PW Surveys

April 30th, 2011

In Take Solutions, Inc., 2010-PER-00907 (April 28, 2011), BALCA found that where the employer receives two different prevailing wage determinations (PWD) for the same position based on its primary and alternative minimum requirements, it must use the higher of the two. In this case, the employer filed a Form ETA 9089 PERM labor certification application with the primary requirements a bachelor’s degree and five years of experience and its alternative minimum requirements a master’s degree plus one year of experience. The employer had obtained two different PWDs for the same position. On the Form ETA 9089 PERM labor certification application, it referred to the lower PWD based on the master’s and one year of experience (given skill level 2). In response to an audit, the employer provided the higher PWD based on a bachelor’s degree plus five years of experience (based on skill level 4). The CO denied the PERM application stating that the PWD provided by the employer did not match the PWD noted on the PERM application. The employer filed a motion for reconsideration along with the PWD noted on the Form ETA 9089, which was a lower PWD and based on the alternative minimum requirements of a master’s degree plus one year of experience. The CO denied the motion because the PWD referred to in the PERM application did not match the PWD provided on audit and the CO did not consider the PWD provided by the employer on reconsideration.

BALCA held that where the employer receives two different PWDs and provides such evidence that it must use the higher PWD. BALCA reasoned that this was to protect the wages of US workers, since if the employer paid the lower wage, based on the alternative minimum requirements of a master’s plus one, to workers with a bachelor’s plus five years of experience, it would have an adverse affect on these workers by underpaying them. BALCA also held that its decision was compelled by the fact that the PERM regulations require that the job application be clearly held open to the broadest possible minimally qualified applicant pool.

USCIS Updates Fiscal Year 2012 H-1B Cap as of April 22, 2011

April 28th, 2011

As of April 22, 2011, USCIS has received approximately 8,000 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 5,900 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

Unused Visa Numbers for EB-2s from India and China

April 7th, 2011

The US Visa Office has recently announced that 12,000 unused immigrant visa numbers will be made available to the EB-2 category and for the thousands of seekers of legal permanent residency to the US. Ultimately, these numbers will be assigned to those EB-2 visa applicants from India and China whose priority dates fall within the 2006 calendar year, and 75 percent of these will be granted to those from India.

There are 140,000 immigrant visa numbers available each year to apply for legal permanent residency based on employment, and this process occurs either through consular processing abroad or adjustment of status in the US. Each country is accorded seven percent of that total regardless of its population size and demand from that country. There are five employment-related preference categories and each is granted a certain percentage of that number. The EB-2 (second preference) classification, for positions requiring at least a master’s degree or a bachelor’s degree plus five years of progressive experience, is allocated 28.6 percent of the total visa numbers.

When a visa applicant starts the legal permanent residency process through either a PERM labor certification application or an I-140 immigrant visa petition, that applicant’s filing date is his or her priority date (place in line). Priority dates are assigned within each preference category without regard to the particular country of chargeability, except for countries that expect to exceed the seven percent limit. Applicants who are chargeable to such countries are allocated visa numbers within preference categories.

India and China are expected to exceed the seven percent limitation in fiscal year 2011. This means that even though there are sufficient visa numbers to provide to current EB-2 applicants from countries worldwide (in other words, there will be no backlogs or delays for those applicants to apply for legal permanent residency), those EB-2 applicants from India and China are subject to a cut-off date of 2006. Only those Indians who have a priority date before May 8, 2006, and those Chinese who have priority dates before July 22, 2006, will be able to apply for legal permanent residency.

Fortunately, there is good news on the visa number front in terms of a plethora of unused numbers that can be allocated to the EB-2 category for India and China. The Visa Office has announced that it estimates that 12,000 extra visa numbers will be available for the EB-2 category this year. US law requires that any unused employment-based visa numbers be used without regard to the seven percent per-country limitation. Because the current EB-2 availability for other countries is sufficient to meet demand, the 12,000 numbers will be used by China and India.

In particular, these numbers will be allocated to those approximate 17,400 EB-2s from India and China with a priority date that is within the 2006 calendar year. These were predominantly the applicants who filed to adjust status in July and August 2007 when the Visa Bulletin was current for all countries but whose applications could not be approved because numbers retrogressed during processing. Because most of the 17,400 applicants were Indians (13,200) and the older priority dates are from India, India will most likely get around 75 percent of those numbers.

As emphasized by Jay Solomon, author of “EB-2 Story: India, China and the “Otherwise Unused Employment Visa Numbers – Is the Visa Office Discriminating Against China” published on AILA Infonet (Doc. No. 11040634) and also available at http://www.usimmlaw.com/EB2Story.htm April 2011, there is no discrimination against China in US policy, since it is US law that visa numbers be accorded based on a person’s priority date or place in line, not on a person’s nationality or country of birth. Although it has a practical disproportionate effect on Indian applications, the law neither favors or penalizes any particular country.