Monique Kornfeld, Immagration Lawyer

BALCA Cases on PERM Requirements and Recruitment

July 25th, 2017

The Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) recently published three cases on the minimum requirements, recruitment and disqualification of US workers associated with PERM labor certification applications. The PERM process is designed to protect US workers by requiring employers that sponsor foreign nationals to first conduct a test of the US labor market (by running ads and placing postings) to determine if there are any qualified US workers. If such a worker does respond to the PERM ads, then the employer may not file the PERM labor certification application (Form 9089) but is not required to hire such US worker.

In Matter of MSL, Inc. (7/17/17), BALCA upheld the denial of a PERM labor certification finding that a US worker was improperly rejected for not passing a test where the Form 9089 and recruitment did not disclose a testing requirement, and there was no evidence that the foreign worker was required to take a test. BALCA cited 20 CFR §656.17(i)(1) that provides that “the job requirements, as described [on the Form 9089], must represent the employer’s actual minimum requirements for the job opportunity.” It emphasized that the employer must not treat the alien more favorably than a US worker.

In Matter of Systime Computer Corporation (7/18/17), BALCA overturned the CO’s denial based on a finding that the position was not clearly open to US workers where the Form 9089 PERM labor certification allowed for alternate requirements that were not mentioned in recruitment. On the Form 9089, the employer indicated the requirements of a bachelor’s degree in computer science, engineering or a related field and 24 months of experience. The employer also stated on the form that 24 months as a software designer, developer or tester as an alternative requirement to the experience in computer science or engineering. Also, the employer specified that four years of relevant experience would obviate any educational requirement and finally stated that it would accept any suitable combination of education, training or experience for the position and a combination of degrees, diplomas and experience equivalent to a bachelor’s degree and 24 months of experience. The employer did not include the precise alternate experience requirements described on the Form 9089 in any of the ads. The website ads placed by the employer noted that it “will accept a combination of education and experience equivalent to a bachelor’s degree and 24 months of experience.”

BALCA analyzed Matter of Systime Computer Corporation under 20 CFR§656.10(c)(8), which requires an employer to attest that “[t]he job opportunity has been and is clearly open to any US worker.” It noted that in prior decisions the relevant inquiry under this regulation is whether the employer’s job search website ads and job order “so misinformed, or so failed to inform, potential applicants about the job opportunity that the recruitment did not support the Employer’s attestation that the job opportunity was clearly open to any US worker.” It referred to cases denied where the salary was understated or the requirements overstated in the ads. BALCA also noted that in other cases a mere omission of information does not result in a finding that the job is not clearly open to US workers. It found that the omission here was of an equivalent requirement (and not an overstatement of the actual minimum requirements) and that such omission was not sufficient to undermine the employer’s PERM attestation that a position was open to any US worker.

In Matter of Pixar (7/17/17), BALCA applied the reasoning from Smartzip Analytics, finding that a Form 9089 labor certification application cannot be denied on its face based on a failure to provide a duration requirement for special skills listed in Box H.14, short of legally sufficient notice of a requirement to do so. The Form 9089 does not require, or have a specific field to enter, such specific information.

USCIS to Resume Premium Processing for Certain Cap-Exempt H-1B Petitions

July 24th, 2017

The following is an announcement from USCIS’s website regarding its resumption of premium processing for certain cap-exempt H-1B petition:

WASHINGTON — U.S. Citizenship and Immigration Services (USCIS) will resume premium processing for certain cap-exempt H-1B petitions effective immediately. The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual “master’s cap” of 20,000 petitions filed for beneficiaries with a U.S. master’s degree or higher.

Premium processing will resume for petitions that may be exempt from the cap if the H-1B petitioner is:

* An institution of higher education;

* A nonprofit related to or affiliated with an institution of higher education; or

* A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

USCIS Announces Return of All 2018 H-1B Cap Cases

July 19th, 2017

Today USCIS announced that it has returned all fiscal year 2018 H-1B cap-subject petitions that were not selected in our computer-generated random selection process. USCIS previously announced on May 3, 2017, that it completed data entry of all selected cap-subject petitions.

If you submitted an H-1B cap-subject petition between April 3 and April 7, 2017 and have not received a receipt notice or a returned petition by July 31, 2017, you should contact USCIS for assistance.

Federal Court Strikes Down Part of Travel Ban

July 17th, 2017

The U.S. District Court for the District of Hawaii modified its preliminary injunction to prevent the government from enforcing the travel ban, Executive Order 13780, against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States. It held that the government’s narrow interpretation of “close familial relationship” was unconstitutional.

The modifications also exclude from the Executive Order refugees who have a formal assurance from a resettlement agency in the United States or who are part of the Lautenberg Program.

USCIS Delays Implementation of International Entrepreneur Final Rule

July 13th, 2017

According to the Federal Register, Vol. 82, No. 131, Tuesday, July 11, 2017, the Department of Homeland Security (DHS) is temporarily delaying the effective date of the International Entrepreneur Final Rule (82 FR 5238). During this time, DHS will obtain comments from the public regarding a proposal to rescind the rule pursuant to Executive Order (E.O.) 13767, ‘‘Border Security and Immigration Enforcement Improvements.’’ The effective date of the original regulation entitled International Entrepreneur Rule, published in the Federal Register on January 17, 2017, 82 FR 5238, is delayed from July 17, 2017, to March 14, 2018. Written comments must be received on or before August 10, 2017.

The original regulation authorizes parole for foreign entrepreneurs who can demonstrate that they will provide a significant public benefit to the United States as a result of economic growth or job creation resulting from their entrepreneurial activities. To qualify, the applicant must be an entrepreneur connected with a start-up entity who is well positioned to advance the entity’s business. The entrepreneur must own at least 10% of the entity at the time of the application and demonstrated that s/he plays an active and central role in the operations and future growth of the entity. Also, the “start-up” entity must have been formed within the five years immediately preceding the date of filing the initial parole application and it must have lawfully done business since its creation and have substantial potential for rapid growth and job creation. There are three ways that an applicant can demonstrate substantial potential for rapid growth and job creation, including any one of the following:

1. Investments from Established U.S. Investors: Investments of capital must be at least $250,000 from U.S. investors (such as venture capital firms, angel investors, or start-up accelerators) with a history of substantial investment in successful start-up entities.

The U.S. organization or individual investor must (1) have made qualified investments of at least $600,000 in start-ups over the prior five-year period; (2) show that subsequent to such investment at least two such start-up entities created at least five qualified jobs or generated at least $500,000 in revenue, with average annualized revenue growth of at least 20%. A qualified job means full-time employment in the U.S. that has been filled for at least one year by a qualifying employee. A qualifying employee includes a U.S. citizen, lawful permanent resident, or other immigrant lawfully authorized to work in the U.S. who is not an entrepreneur of the start-up entity or the parent, spouse, brother, sister, son or daughter of such entrepreneur. Independent contractors do not qualify as employees.

2. Government Grants: Awards or grants of at least $100,000 from Federal, State or local government entities with expertise in economic development, research and development, or job creation;

3. Alternative Criteria: If the applicant only partially meets one or more of the above criteria relating to capital investment or government funding, s/he may still succeed with the parole application if s/he can provide additional reliable and compelling evidence that s/he would provide a significant public benefit to the U.S. upon receipt of the parole status.

August 2017 Visa Bulletin: EB2 Worldwide Category Retrogresses

July 12th, 2017

The U.S. Department of State (DOS) released the August 2017 Visa Bulletin today showing a retrogression of the employment-based second preference EB2 worldwide category to April 1, 2015. It notes that it won’t become current again until October 1, 2017. The EB2 category for India is at July 22, 2008, and for China April 22, 2013. The EB1 category remains backlogged for India and China with a cutoff date of January 1, 2012, but the EB1 worldwide category remains current. The EB3 worldwide category remains current and the EB3 category for China is at January 1, 2012, and at July 15, 2006, for India.

Applicants for adjustment of status who have a priority date earlier than the date in the ‘Final Action Dates for Employment-based Preference Cases’ chart may file their Forms I-485. Applicants for immigrant visas may use the ‘Dates for Filing of Employment-based Visa Applications’ chart.

BALCA Affirms Denial of PERM Stating “Delivery of Products” Indicates Travel

July 12th, 2017

In Matter of Arbin Corporation (06/29/2017), BALCA affirmed a denial of a PERM labor certification application where the newspaper ads did not contain any language advising clients of travel. The job description included the phrase “delivery of products,” which to BALCA indicated travel. The PERM sponsor must always note any travel requirement in the PERM recruitment.

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.

Travel Ban Close Family Member Includes Fiance

June 30th, 2017

The government has just expanded the list of qualifying “close family members” for an exception to the travel ban to include a fiancé. The DOS released a cable yesterday implementing Trump’s executive order travel ban, which included spouses but not fiancés. The state of Hawaii may be litigating the government’s position, since a close family member does not include a grandparent, grandchild, cousin or niece or nephew.