BALCA PERM Labor Certification Application Cases

May 25th, 2016

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, 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.

Worksite Relocation:  BALCA overturned a denial of a PERM labor certification application, relying on the Farmer Memo, where employer had unanticipated work locations, including the possibility of relocation.  BALCA noted that the Department of Labor must provide advance notice before imposing new requirements. (Matter of Infosys Ltd, 5/12/16)

Sufficiency of employer’s statement on candidate’s qualifications:  BALCA upheld the denial of a PERM labor certification application where the employer failed to investigate further, by interview or other means, the qualifications of the candidate where the candidate’s résumé raised the “reasonable prospect” of the candidate being qualified based on education and overall experience. (Matter of CEO Ally, Inc., 5/12/16)

PERM audit documents: BALCA found that the employer’s job search radio ad and web ad on the internal website met the requirements of  20 CFR §656.17(e)(1)(ii)(B) and (j) where the employer provided an audio recording of the radio advertisement but did not include a text copy, and where copies of its website postings were not dated. (Matter of Waldorf School of Orange County, 11/06/2015)

Verification of employer’s sponsorship: BALCA found that the employer provided adequate information in the record to verify an employer’s sponsorship for a PERM labor certification. It  found that the sworn statement that the employer provided with its PERM labor certification application and an email exchange among the ANCP, the employer, and the attorney of record was acceptable proof of sponsorship. (Matter of La Hacienda Meat Market, Inc. 11/04/2015)

Job order and additional requirements: BALCA reversed the denial of the PERM labor certification application that was originally denied following an audit. The CO found that the job duties listed on the job order and that listed on job search website negated job requirements. BALCA reversed the denial citing the holdings in Chabad Lubavitch Center and Symantec Corporation. (Matter of First Tek Technologies, Inc. 11/04/2015)

Opportunity to submit documents during the audit process: BALCA affirmed the Certifying Officer’s denial of the PERM labor certification application due to the fact that the employer had the opportunity to provide the requested documents during an audit process and was barred from providing amended documentation under 20 CFR §656.24(g)(2)(i)-(ii). (Matter of Accent-Media Productions, Inc. 09/23/2015)

BALCA Denies PERM for Failure to Properly Consider US Applicant

May 17th, 2016

BALCA upheld the denial of a Form ETA 9089 PERM labor certification application where the employer failed to properly inquire into the qualifications of an applicant whose resume raised a reasonable prospect of the applicant’s meeting the minimum requirements for the position.  Matter of CEO Ally, Inc. 5/12/2016.

Employers filing PERM applications must certify that any US worker applicants were rejected for lawful job-related reasons.  If a US worker does not have the precise education, experience, training or other credentials as required by the employer, then if the US worker has a suitable combination of education, training or experience, and is able to reasonably perform the job duties (or could be trained within a reasonable period of time), the PERM application will fail.  The employer is not required to hire the US worker applicant but cannot sponsor the foreign national based on this round of recruitment.  The employer would have to redo the recruitment to test the US labor market.

In this case, the employer stated that it had rejected one candidate based on the face of the resume without a further review of her credentials. The certifying officer (CO) found that the resume showed a broad range of experience, education and training, raising the reasonable possibility that the candidate met the actual requirements on the PERM application and obligating the employer to investigate her background further.  The candidate had the requisite master’s degree and over 20 years of experience (noted on her resume) in a related field but not the 48 months of experience in the area as required on the PERM application.  The employer rejected the candidate based on her resume and the fact that it did not show the 48 months of requisite experience.

BALCA held that the CO was correct in its conclusion that the employer had an obligation to investigate the candidate’s background further to ascertain if she could “acquire the skills necessary to perform the job duties involved in the occupation during a reasonable period of on-the-job training.”  §656.24(b)(2) (i).

 

H-1B Cap Reached for Fiscal Year 2017

May 17th, 2016

USCIS has announced that the cap has been reached for H-1B visa numbers for fiscal year 2017 and it has conducted a computer lottery to assign visa numbers to H-1B petitions filed the first week of April 2016.  For those beneficiaries subject to the H-1B cap who don’t receive a visa number, they must wait until next year to try again for a number.

The good news is that certain institutions are exempt from the H-1B cap.  These include nonprofit entities affiliated with institutions of higher education.  USCIS takes a very narrow view of affiliation, requiring joint control or ownership. However, it will give deference to prior determinations made since June 6, 2006, that a nonprofit entity is related to an affiliated institution of higher education, absent any significant changes in circumstances.

Therefore, such nonprofit entities can file H-1B petitions throughout the year for beneficiaries who would otherwise be subject to the H-1B cap.  These beneficiaries include those who have not been counted against the cap within the past six year (for example, J-1 physicians, F-1 students or H-4s changing to H-1B status).  They may start working in H-1B status as soon as the petition is approved.  Now that there is premium processing, that could be in as little as two weeks from filing the petition.

My office has extensive experience successfully filing such H-1B cap exempt cases.

New STEM Optional Practical Training Rules

May 17th, 2016

The new STEM (science, technology, engineering, math) OPT (optional practical training) extension is a 24-month period of temporary training that directly relates to an F-1 student’s program of study in an approved STEM field, and replaces the 17-month STEM OPT extension previously available to certain STEM F-1 students. The 17-month STEM OPT regulations remained in effect through May 9, 2016. The 2016 final rule’s STEM OPT 24-month extension has been effective since May 10, 2016.

 

 

Students with Existing 17-Month STEM OPT EADs on May 10, 2016

 

Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. Also the student’s DSO must continue to abide by all the terms and conditions that were in effect when the EAD was issued.

 

Transition Plan

 

As a transitional measure, from May 10, 2016, through August 8, 2016, certain students with such EADs will have a limited window in which to apply for an additional seven months of OPT, enabling them to benefit from a 24-month period of STEM OPT. To qualify for the additional seven-month extension, the student must show the following:

 

  • Have at least 150 calendar days remaining before the end of the student’s 17-month OPT period at the time the Form I-765 employment authorization application is filed, and they must otherwise meet all requirements of the 24-month STEM OPT extension;
  • Properly file a Form I-765 with USCIS, along with applicable fees and supporting documentation, on or before August 8, 2016, (i.e., 90 days after May 10, 2016); and
  • File the I-765 within 60 days of the date the DSO enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record.

 

Whom the Transition Plan Does Not Cover

 

Students whose 17-month STEM OPT extension expired prior to May 10, 2016, or who have fewer than 150 days remaining on their 17-month STEM OPT extension EADs on the date that they are able to properly file their STEM OPT extension are not covered under the transition plan.

 

To become eligible for the 24-month STEM extension, students who are not covered under the transition plan would first need to earn another qualifying STEM degree at a higher educational level.

 

 

Other Terms of the New STEM Extension Rule

 

As under the old rule, the employer must participate in the E-Verify program, a U.S. government internet-based system for verifying employment eligibility, and the field of study must be on a list compiled by Immigration and Customs Enforcement (ICE) and available on ICE’s website. Other important changes in the new rule include:

  • The school that granted the degree must be accredited by an organization included in a U.S. Department of Education database.
  • There is a 24-month extension, instead of the former-17 month extension and the possibility of a second 24-month extension after completing a higher level degree and meeting certain requirements.
  • The 24-month extension may be based on a degree completed within the past 10 years at a U.S. institution in the US that is accredited at the time the extension application is filed and the training must be directly related to the STEM field.
  • Additional fields of study are included in the list of STEM degrees acceptable for extension.
  • A training plan is now required in order to obtain the school official’s recommendation of the OPT extension. The training program imposes obligations on employers intended to protect the employment of US workers.

Furthermore, the new rule creates hurdles for students who are entrepreneurs, since they can no longer be self-employed. The training program must be signed on the employer’s behalf by someone other than the student, and there must be an employer-employee relationship. This resembles USCIS’s policy prohibiting self-employment since 2008 for H-1B visa holders. The employer-employee requirement also bars volunteering. In addition, although USCIS maintains that even “start-ups” can participate, because of the onerous requirements of the training program, it may be difficult for smaller employers to comply.