BALCA Reverses Denial of PERM Labor Certification Based on Omission

September 30th, 2013

In Saran Indian Cuisine, 2011-PER-01939 (August 27, 2013), BALCA held that the employer’s failure to submit a notarized statement attesting to its sponsorship of the alien did not constitute a substantial failure to provide required documentation pursuant to the PERM regulations.  The audit requested a notarized statement from the employer attesting to the sponsorship of the foreign worker.  The employer did not include such a statement in its response to the audit.  The CO denied the PERM labor certification based on the employer’s failure to provide the written notarized attestation.

BALCA found that the PERM labor certification was wrongfully denied under 20 C.F.R. §656.20(b), which states that a “substantial failure by the employer to provide required documentation” will result in a denial of the application.  It stated that it has consistently affirmed denials under 20 C.F.R. §656.20(b) when the “required documentation” that an employer omits in an audit response is documentation specifically identified in the regulations as necessary evidence for a particular attestation.  BALCA then referred to SAP America, Inc., 2010-PER-01250 (April 18, 2013(en banc), which further clarified what constitutes a substantial failure under 20 C.F.R. §656.20(b).  In this case, BALCA stated that when omitted requested documentation is merely supplemental documentation that is not specified by the statute, then such omission is not a substantial failure by the employer to provide required documentation.

BALCA applied SAP America’s reasoning to this case and found that the requested notarized statement was not documentation that was required by regulation and that the omission of such documentation did not materially affect the certifying officer’s (CO) review of the application.  It found that verification of the employer’s sponsorship was sufficiently satisfied by the employer’s signing the attestation on the Form ETA 9089 at Section N, since such signature is a sworn statement under penalty of perjury (20 C.F.R. §656.10(c)).

Therefore, BALCA held that the employer did not substantially fail to provide required documentation, reversed the CO’s denial and remanded the matter.

 

E-2 Treaty Investor Visa Approved for Tailor Shop Owner

September 25th, 2013

The US Consulate recently granted an E-2 treaty investor visa for my client who purchased a tailor shop in the US, although he did not have what he thought was substantial funds to invest.  In order to obtain an E-2 visa as a primary investor the alien must show that he or she has made a substantial investment in a US enterprise (or will do so upon issuance of the visa).  US immigration laws do not specifically define what is substantial, but rather provide a narrative in terms of proportionality.  The greater the funds needed to operate the establishment the smaller the percentage of such funds the alien must invest.  For example, if an alien were to open a new Toyota plant in the US worth millions of dollars, then she would not be expected to invest 90% of the value of this enterprise but far less.  However, if she were to purchase a small cobbler shop then she would be expected to invest far more and maybe 90%.

Therefore, it is important to emphasize that it is not the quantity that the alien is investing that is key but the percentage of the total value of the enterprise.

Outstanding Researcher Petition Approved for Scientist in Pharmaceutical Sciences

September 25th, 2013

USCIS approved an outstanding researcher petition I filed on behalf of a professor and scientist in the field of pharmaceutical sciences and drug delivery.  The challenge in this case was showing that the scientist’s research experience in the industry (a private pharmaceutical company) satisfied the regulations requiring three years of experience in research.  USCIS does not consider engineering or product design as research for these purposes.  However, we were able to demonstrate that during the course of the scientist’s employment in private industry,  he contributed to the understanding and development of applications for pharmaceutical dosage forms.

The key in any outstanding researcher petition is to prove how the alien has received “international” recognition for novel contributions to his or her field.  The regulations provide a list of six criteria and require that the alien satisfy two of these criteria.  Satisfying the criteria itself is not enough (prizes, publications, memberships, serving as a judge of others, original or scholarly research contributions, published material about the alien).  USCIS is now requiring an increasing level of evidence of the international nature of this evidence.

In this case, as in most of the petitions I file, I provide prodigious data on the international aspect of these criteria, including recommendation letters from experts worldwide, pie charts showing the international breakdown of citations and information about the international circulation of publications.