Recently the USCIS published new regulations which have far reaching implications for international workers. HLG will be hosting 3 individual teleconferences to cover the various subjects included. Please check out the link here and register and pass along to any friends or colleagues that may be interested.
Many employers have been frustrated by the DOL’s decision to deny labor certifications where an employer used the language of “competitive salary” or “depends on experience” in portions of their recruitment. The Board of Alien Labor Certification Appeals (“BALCA”) provided a decision in Matter of TEK Services LLC that may assist employers in fighting against these unwarranted denials. In this case, the employer submitted a labor certification on behalf of a “Computer Systems Analyst.” As part of its recruitment effort, the employer stated that the position offered a “competitive salary” in the job order and on the employer’s website. The Certifying Officer (“CO”) denied the case based upon 20 C.F.R. § 656.24(b)(2) and noted that the advertisements placed by the employer do “not adequately apprise U.S. workers of the nature of the wage . . . also can dissuade some U.S. workers from applying for the job opportunity, and mislead others.” In reviewing 20 C.F.R. § 656.24(b)(2), BALCA noted that it provides the basis upon which a labor certification can be granted or denied, including how the CO should consider the employer’s compliance with the attestation that no qualified, available, and willing U.S. worker was applied. However, it does not list any requirement in regards to salary. Consequently, BALCA “rejected the CO’s effort to utilize 20 C.F.R. § 656.24(b)(2) as a catch-all denial ground encompassing any employer action that the CO deems problematic, despite citing no specific regulatory requirement that the employer has violated.” The Hammond Law Group applauds BALCA for reminding the DOL that it cannot make up new standards that have no basis in the federal regulations.
The Department of State (DOS) released the December Visa Bulletin last week. The Dates for Filing chart remained unchanged. The Final Action date chart revealed no forward movement for EB3 all others and small movement for all other categories. The lack of significant forward movement was disappointing but, the really bad news came in the DOS’s projections for coming months. The DOS is expecting the EB1 category for India and China to retrogress. The DOS also expects the EB2 category for the Philippines, Mexico, and all others to retrogress in the summer if not sooner. They also predict continued holds or slow movement for EB3 across the board. Retrogression relief in the form of new legislation is sorely needed but, its prospects are unknown.
Although much of the immigration related Trump campaign for Presidency focused on “building a wall” and other enforcement issues, he did make some far-reaching comments such as “the H-1b visa should be eliminated” only to back track on that position later. He has surrounded himself with some immigration advisers, most notably, Senator Sessions who are not only opponents of illegal immigration but, also widespread critics of legal immigration. We must keep in mind not to believe everything we hear but, as information comes out about President-elect Trump’s immigration team and his planned policies on legal immigration, we will share them here. We will also share articles of interest that discuss the impact on IT staffing in general. Today’s article comes from Staffing Talk.
The U.S. Department of Labor, Office of the Administrative Law Judges (OALJ), has determined that in certain circumstances, an employer can deduct H-1B visa fees from an employee’s final paycheck.
In this case, Matter of Woodmen of the World Life Insurance Society, October 26, 2016, the OALJ determined that Woodmen Life did not violate any DOL regulation by deducting $5800 from the employee’s final payment for reimbursement of H-1B attorney and filing fees pursuant to an agreement which was entered into voluntarily by the employee.
Although the DOL found that §655.731(c)(9), which speaks to “authorized deductions from an employee’s required wage and specifically prohibits an employer from seeking recoupment of H-1B attorney fees and expenses from the required wage, even if the employee consents” was not applicable to this case since the deduction for the attorney’s fees came from the benefits side of the equation and not from the employee’s required wage, the DOL’s stated that the regulation is “far too broad and not supported by the plain language of the regulation.” The DOL further clarified that “an H-1B employer is prohibited from imposing its business expenses on the H-1B worker – including attorney fees and other expenses associated with the filing of an LCA and H-1B petition – only to the extent that the assessment would reduce the H-1b worker’s pay below the required wage, i.e. the higher of the prevailing wage and the actual wage.”
DHS is increasing filing fees on immigration and naturalization applications adjudicated by U.S. Citizenship and Immigration Services. DHS explained that the fee increase is necessary to account for costs of adjudicating services. According to DHS, the current fees do not recover the full costs associated with the adjudication of these applications and the fee increase will help continue “adequate service.” The last time USCIS fees were increased was on November 23, 2010. Under the final published rule, DHS will increase the fees by a weighted average of 21%. The fee increase will take place by December 23, 2016. Applications filed or postmarked on or after December 23, 2016, will need to include the new correct filing fee. If you are thinking of filing an application with USCIS, you may want to file now.
Cadence Moore will be a speaker at ITServe Alliance’s annual Synergy Conference in Frisco, TX on November 10th and 11th. Cadence will be speaking about the immigration options for corporate clients in the information technology field. If you are attending, please make sure you attend her event.
The Board of Alien Labor Certification Appeals (BALCA) recently ordered a PERM Labor Certification application to be certified following the Certifying Officer’s denial due to a salary range mismatch between the PERM application and the Notice of Filing.
In re Institute for Environmental Health, Inc., 2013-PERM-01963 (BALCA 2016) involved the classic PERM situation where a discrepancy between what was listed on the 9089 and prefilling recruitment/notice documentation leads to a denial. The employer in this case attested on the 9089 that the prevailing wage was $25,022.40 and that the offered wage was $25,023. However, on the notice of filing the employer listed a salary range of $25,023 to $34,837.
Given the exacting requirements of the PERM process lawyers generally aim to have their recruitment mirror the requirements listed on the 9089. The so called “matchy-matchy” doctrine has aided many lawyers navigating tricky PERM waters. In this case, BALCA ruled that the regulations is “clear and unambiguous” on allowing a salary range in the notice of filing even though the 9089 only listed the offered wage.
I suspect the Board’s action (three years after the initial denial) saving this PERM from floundering was well received by the employer. I also suspect that when counsel of record files another PERM case they will match their 9089 and recruitment / notices.
Even if one is ultimately correct and wins on appeal, knowing how cases are handled by DOL officers will save employers heartaches and legal fees. For guidance on your PERM application, contact Hammond Law Group.