USCIS Reinstates H-1B Premium Processing for J-1 Conrad 30 Physicians and Interested Government Agencies

July 8th, 2017

USCIS has reinstated its H-1B premium processing for J-1 Conrad 30 physicians as well as interested government agencies (IGAs). The Form I-907 request for premium processing can now be filed for H-1B petitions based on the Conrad 30 and IGA designations. The Conrad 30 program allows for certain physicians to work in medically underserved areas (MUAs) and health professional shortage areas (HPSAs) in H-1B status after completing their J-1 program and waives their two-year foreign residence requirement of INA Section 212(e). The two-year requirement bars the J-1 worker from obtaining H-1B status or legal permanent resident until he or she has served two years in his her home country after completing the J-1 program.

USCIS also announced that it will resume premium processing for other H-1B petitions as its workloads permit.

BALCA’S Ruling on PERM Case Involving Proper Disqualification Based on the Face of the Resume

July 3rd, 2017

In Sunnyvale School District, 2014-PER-00620, June 22, 2017, BALCA overturned the denial of a PERM labor certification application, finding that the US applicant may be disqualified on the face of the resume. In Sunnyvale, the employer filed a PERM application for a special education teacher. The employer required a valid California teaching license t provide services to children from birth through pre-kindergarten with special needs. The Certifying Officer (CO) audited the application and then directed the employer to conduct supervised recruitment. It instructed the employer to further investigate any applicant whose resume raises a reasonable possibility that the applicant meets all of the position’s requirements and explore the possibility of training US workers to perform the duties within a reasonable period of time.

The case revolves around one of the applicants whose resume indicated that she has a BS degree in elementary education, special education, three years of teaching experience in special education for sixth and seventh graders and in interest in teaching all ranges of ages. It did not indicate any license.

BALCA noted that it may be clear from the face of the resume that the US applicant’s deficiencies cannot be remedied through a reasonable period of on-the-job training. It offered the example of a resume that is silent as to whether the applicant meets a “major” requirement, such as a college degree. In such a case it found noted that an employer might reasonably assume that the applicant does not have such education, and therefore, rejection without follow up may be proper. It cited to Gorchev & Gorchev Graphic Design, 1989-INA-00118 (Nov. 29, 1990)(en banc)(pre-PERM).

If, however, the applicant’s resume notes a broad range of skills, education and training that are the job’s requirements, and is silent only about a “subsidiary” requirement, this makes it more likely that the applicant may meet all of the requirements and, hence, the employer has a duty to inquire further. BALCA noted that this obligation usually occurs when the applicant has the requisite degree but not the particular skill noted in Section H.14 (special requirements) of the Form 9089.

BALCA then found that in the instant case, the applicant’s resume omitted a major requirement – a professional state license. It held that under Gorchev, the employer could properly assume that the applicant’s failure to list such a major requirement meant that she did not have the license. Furthermore, BALCA held that it is doubtful that any amount of on-the-job training could substitute for such a license. Therefore, BALCA found that the applicant’s resume did not establish a reasonable possibility that she could qualify for the position.