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.

Retaining Priority Date of I-140 Immigrant Visa Petition for Green Card Case

April 10th, 2014

The beneficiary of an approved Form I-140 immigrant visa petition in the EB-1, EB-2 or EB-3 employment-based category may retain the priority date of this petition for all subsequent I-140 petitions filed on his her behalf in the EB-1, EB-2 or EB-3 category.  This could significantly reduce the processing time to obtain legal permanent residency (the green card).  This applies even where the I-140 petition has been revoked after its approval.  The exception, where the revocation results in a loss of the priority date for this petition, is where there was fraud or misrepresentation.

The priority date is the beneficiary alien’s place in line for an immigrant visa number to apply for legal permanent residency.  It is either the date that the PERM labor certification application (Form ETA 9089) is filed with the Department of Labor, or if the PERM process is bypassed for those outstanding ability aliens, the date the Form I-140 immigrant visa petition is filed.  There are 140,000 employment-based visa numbers allocated each year equally to each country worldwide.  For those countries whose number of foreign nationals applying for a visa number exceeds the visas allotted to that country, such as India and China, a backlog results and these applicants are assigned a place in the line (the priority date).

Especially for those from India or China, or those in the EB-3 worldwide category, in which case immigrant visa numbers are not current and there is a long wait for them, retention of a priority date is a boon.  For example, let’s take an Indian software engineer with an I-140 approved on her behalf in the EB-3 category and with a priority date of September 1, 2009.  If she changes H-1B employers, leaving the employer that obtained the I-140 for her, she can retain the priority date from that petition and use it in her second PERM labor certification-based green card case at her subsequent employer.  If that second employer obtains a certified PERM application on her behalf in 2013, which has a priority date of 2013, then when filing its I-140 on her behalf it can instruct USCIS to accord its I-140 the priority date of the first 140 petition.  Even if the beneficiary’s first I-140 is revoked (except for fraud or misrepresentation), she can still retain the priority date.

BALCA Finds Dice.com Not a Professional Organization for PERM Labor Certification Recruitment

November 7th, 2013

BALCA has found that Dice.com is not a professional organization for PERM recruitment purposes under 20 CFR §656.17(e)I1)(ii)E), but rather a job search website for IT professionals.  Prithvi Information Solutions LLC, 2011-PER-01112 (BALCA, November 1, 2013).  An employer must conduct certain recruitment before filing a PERM labor certification application to ensure that there are no able, available, willing and qualified US workers for the position.  20 CFR §656.17(e).  If it is a professional position, then it must place a job order and advertise in a newspaper or professional journal, and it must select three additional forms of recruitment of a list of alternatives.  20 CFR §656.17(e)(1).  One of the additional forms of recruitment is through a professional or trade organization.  In Privthi Information Solutions LLC, the employer stated that it used a professional organization – Dice.com.  BALCA found that this was not a professional organization for PERM recruitment purposes because its focus was on IT job search activities and not on professional activities related to professional organizations (original content, academic conferences and research, etc).

 

 

US DOL Website Reopen at a Snail’s Pace

October 22nd, 2013

Now that the US government is reopen, the US Department of Labor’s (DOL) iCert website is now “functional,” although as slow as honey.  The DOL has jurisdiction over the Labor Condition Application (LCA), which is required for the H-1B petition, and also for issuing prevailing wage (PW) determinations, which are required for the PERM labor certification application, the first stage of the green card process for most employment-based foreign workers.  During the shutdown, some H-1B workers were not able to file timely extension petitions to maintain their status.  However, USCIS, which adjudicates the H-1B petitions, has stated that it will accept late-filed petitions under the extraordinary circumstances exception, since the employers and H-1B employees should not be penalized for the government’s delays.

The DOL has not yet issued its policy on how to deal with PERM labor certification applications that employers were unable to file for which the recruitment became stale during the shutdown.  Upon filing a PERM application, the recruitment must have transpired between 30 and 180 days (except for one form of recruitment, and not including the notice of posting or the job order).  To restart a PERM application is very costly because of the recruitment requirements.  Also, the employer can be greatly harmed if it needs to restart a PERM case, since qualified US workers may apply for the position the second time around, which is the death knell for the PERM case.  The employee can be harmed as well if her only way of obtaining more than six years in H-1B status is by showing that a PERM application was filed by the end of her fifth year in H-1B status.

Let’s hope that the shutdown shenanigans do not rear their ugly head this January when the budget must be renegotiated.

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.

 

BALCA Case on Validity of the Job Order for the PERM Labor Certification

June 26th, 2012

In Industrial Steel Products, LLC, 2012-PER-00542 (June 21, 2012), BALCA held that the 180-day validity period for the job order should be calculated based on the commencement date of the SWA job order rather than the end date. The regulation at 20 CFR §656.17(e) provides that a job order must be placed with the SWA for a period of 30 days and conducted at least 30 days but no more than 180 days before the filing of the labor certification application. BALCA cited Blue Mountain Stone, Inc. 2010-PER-481 (Feb. 24, 2011) for an explanation: “Under the regulations, the SWA job order must have ended at least 30 days prior to the filing of the Form ETA 9089. . . This regulatory requirement is designed to ensure that an employer has sufficient time to receive resumes, make contact with any applicants, conduct interviews and make decisions regarding applicants who have responded to the job . . .”

Therefore, BALCA affirmed the certifying officer’s denial of the labor certification where the employer placed the job order more than 180 days prior to filing the Form ETA 9089 PERM labor certification application.