USCIS Denies Downgraded EB-3 I-140 Petition and Revokes EB-2 for Chinese H-1B

May 19th, 2017

An H-1B worker from China called to inform me that USCIS has denied his company’s Form I-140 immigrant visa petition to downgrade from his approved Form I-140 petition and also revoked the company’s first I-140 EB-2 petition on his behalf. USCIS claimed that he did not have the requisite education, among other things. His current H-1B status will be valid until 2019. This situation must be evaluated under the high skilled worker rule published in January 2017 regarding the retention of priority dates and validity of I-140s later revoked. In this case, if the Chinese H-1B’s I-140 remains valid for H-1B extension purposes, then he can restart the PERM labor certification process, possibly retain the priority date, and not worry about extending his H-1B status again until his priority date becomes current.

Denials Suspended of PERM Cases Where H.14 Requirements Not Specified

December 9th, 2016

Based on BALCA’s decision in Matter of Smartzip Analytics, the DOL’s (Department of Labor’s) Office of Labor Certification (OFLC) will suspend denials of PERM labor certifications where experience noted in Section H.14 of the Form ETA 9089 was not quantified. In Matter of Smartzip Analytics, BALCA reversed the certifying officer’s denial where the required experience was not quantified for each skill listed in Section H.14 of the Form ETA 9089, explaining that the Form ETA 9089 nor its instructions mandate a duration requirement.

Filing a Second PERM Labor Certification Application for the Same Employee

October 25th, 2016

In Matter of Allianz Global Investors of America, BALCA upheld the Certifying Officer’s (of the Department of Labor) denial where the employer filed two PERM applications for the same employee with substantially similar job duties, referring to 20 CFR§656.24(e)(6), which states that the employer is not allowed to have more than one labor certification pending for the same foreign worker in the same job opportunity.

The best practice when filing a second PERM for an employee in the same occupation is to first withdraw the first one (preferably online, it is quick and easy).

Advanced Degree EB-2 Status for Indian Foreign Nationals

October 4th, 2016

The general rule in obtaining legal permanent residency under the EB-2 “professionals with advanced degrees” (INA §203(b)(2)) is that the foreign national beneficiary must have an advanced degree (master’s or higher) or a single-source bachelor’s degree.  For those foreign nationals from countries with immigrant visa number backlogs such as India and China, filing under the EB-2 category (as opposed to the lower EB-3 category that requires a bachelor’s degree or two years of skilled experience), can mean obtaining legal permanent residency years faster.   There are many exceptions to this highly confusing and esoteric area of the law.

One of the exceptions regards the requirement of a single-source bachelor’s degree.  USCIS has approved EB-2 Form I-140 immigrant visa petitions where the beneficiary earned a three-year bachelor’s of science degree (as confirmed by EDGE/AACRAO educational standards system) and an ensuing post-graduate diploma (PGD) from a program accredited by the AICTE (All-India Council for Technical Education) from India at the time the PGD was earned.

BALCA Upholds Denial of PERM Where Candidates Did Not Have Related Degrees

September 25th, 2016

In Cardinal Health, BALCA upheld the denial of the Form ETA 9089 PERM labor certification and found that the employer did not lawfully reject qualified US workers. Matter of Cardinal Health, 2012-PER-03522 (September 13, 2016).   The CO stated that the PERM labor certification application was denied because the Employer failed to at least interview candidates who, although they did not possess the precise degree required in the PERM application, appeared to have a suitable combination of education, training and experience.

BALCA noted that the regulations require that the CO must consider a US worker able and qualified to hold the position offered if the candidate “by education, training, experience or a combination thereof, is able to perform in the normally accepted manner the duties involved in the occupation.  20 CFR §656.24(b)(2)(I).”  In this case, the CO found that although three candidates did not earn the degrees noted on the ETA Form 9089 PERM application, they did have extensive experience in the same field described in the ETA Form 9089.  BALCA held, “Where the record shows that an applicant has performed the very type of work that is described in the Form 9089, eliminating such a qualified applicant because his or her degree is not in a specified field appears to run counter to the purpose of the regulation.”

US Department of State’s Charlie Oppenheim and Immigrant Visa Movement

August 22nd, 2016

As of August 12, 2016, according to the US Department of State’s Charlie Oppenheim, the following can be expected in the movement of immigrant visas:

  • There will be an infusion of visa numbers for FY 2017 that will make EB-4 India and EB-4 Mexico current in October;
  • The final action date for EB-4 Guatemala, El Salvador and Honduras should progress to a date sometime in the summer of 2015;
  • EB-2 Worldwide should become current again in October 2016 but EB-3 Worldwide will most likely not become current;
  • The final action date for EB-2 China and EB-3 China will remain the same through the end of this fiscal year and in October EB-2 China is expected to advance to late 2011 or early 2012 and EB-3 China’s final action should reach 2012 or early 2013; and
  • In October EB-2 India should advance to early 2007 and EB-3 India should progress slowly and is likely to remain at a 2005 date in October.

BALCA Upholds PERM Where Alternative Requirements Were Omitted from Ads

August 15th, 2016

In Cosmos Foundation, Inc., BALCA reversed the denial of the Form ETA 9089 PERM labor certification and found that the employer’s omission of the alternative experience requirements in the recruitment sufficiently apprised US workers of the open position and did not discourage potentially qualified candidates from applying. Matter of Cosmos Foundation, Inc., 2012-PER-01637 (August 4, 2016).   The CO stated that the PERM labor certification application was denied because the omission violated two provisions of the PERM regulations:  (1) not sufficiently apprising US workers of the job opportunity and (2) not having the job clearly open to US workers (656.10(c)(8)).

 

BALCA found that an Employment and Training (ETA) FAQ addresses the level of detail required in the employer’s advertisement. This states that “Employers need to apprise applicants of the job opportunity.  The regulation does not require employers to run advertisement enumerating every job duty, job requirement, and conditions of employment. . . “  https://www.foreignlaborcert.doleta.go/faqanswers.cfm (last visited May 31, 2016).  BALCA concluded that not every job requirement must be included in the ad in order to notify US workers of a job opportunity.”

 

Also, in this case, the ad stated that 24 months of experience was necessary. BALCA accepted the employer’s argument that the reasonable interpretation of the employer’s listed job experience requirement was that applicants were required to have two years of experience in a specific field versus in the particular job noted in the PERM application.   Therefore, BALCA found that the employer’s omission of the alternative experience requirement did not discourage qualified applicants’ interest in the job.

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).

 

BALCA Finds One Newspaper Sufficient as Both General Circulation and Local Newspaper for PERM Labor Certification Applications

May 6th, 2014

The Board of Alien Labor Certification Appeals (BALCA) held that the employer’s PERM advertising in the same newspaper could satisfy the criteria of newspapers of general circulation (for the Sunday ads) and local newspapers.  Matter of Delta Search Labs, 2011-PER-02871,  4/24/2014.  In addition to the job order, two Sunday general circulation newspaper ads and the internal notice of posting, the employer must conduct three additional recruitment steps for any professional position.  Such recruitment may include local or ethnic newspapers, referral programs, college campus recruiting, private recruitment, job websites, the company’s website and radio and TV.  In this case, the employer placed two Sunday ads in the Boston Globe as an ad in the same paper during the week.  The employer chose the Globe because it was most likely to produce responses from able, willing and qualified US workers.