BALCA Affirms that Content Requirements of 20 C.F.R. § 656.17(f) Don’t Apply to Job Orders

The Board of Alien Labor Certification Appeals (“BALCA”) recently affirmed that the content requirements that are specified in the federal regulations for newspaper advertisements in 20 C.F.R. § 656.17(f) do not pertain to state workforce agency job orders. The employer submitted a labor certification for the position of “computer software engineers, systems software” and specified in the Form 9089 that the position required five years of experience. The case was audited and denied because the job order that the employer provided stated that the position had an experience requirement of “greater than 5 years.” The employer appealed the decision and noted that the Illinois state workforce agency job order site only provided a set number of experience options that included “3-5 years” and “greater than 5 years.” The employer stated that it choose the option of “greater than five years because it was the most appropriate since ‘3-5 years’ was not an accurate reflection of tis experience requirement.” BALCA reviewed Matter of Chabad Lubavitch Center, 2011-PER-2614, and noted that the requirements of 20 C.F.R. § 656.17(f) only apply to “advertisements placed in newspapers of general circulation or in professional journals.” BALCA also found that the federal regulations that govern job orders are silent in regards to whether the content requirements of 20 C.F.R. § 656.17(f) apply to job orders, which lead it to believe that the Department of Labor “did not intend to impose these content requirements on all types of advertisements.” Many state workforce agencies provide limited options in regards what can be selected for experience requirements. This case instructs the DOL that it may not deny cases when the state workforce agency fails to allow employers to specify the exact requirements of the position.

USCIS ISSUES POLICY MEMORANDUM REGARDING ADJUDICATIONS FOR CERTAIN L-1A VISA PETITIONS

The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum, adopting an Administrative Appeals Office (AAO) decision, to provide guidance that applies to and binds all USCIS employees regarding the adjudication of L-1A visa petitions. Specifically, the memorandum clarifies that when determining whether the beneficiary of an L-1A visa petition will primarily manage an essential function, USICS officers must weight all relevant factors including evidence of the beneficiary’s role within the larger qualifying international organization. The guidance clarifies a 2013 decision of the appeals office, Matter of Z-A- Inc., which overturned a Director’s decision denying an extension to stay for an L-1A beneficiary who was serving as a Vice President and Chief Operating Officer of a large Japanese manufacturer. In the overturned decision, the Director had determined that the officer wasn’t employed in a managerial capacity because U.S. operations did not have an “organizational structure” large enough to ensure the executive would not be performing the day to day sales duties. The decision failed to take into account the eight foreign staff located in Japan who worked under the manager, who performed the day to day sales duties necessary. The Japanese parent company is a publicly trade firm with over $900 million in sales.
In overturning the decision, the AAO found that the beneficiary’s responsibilities did primarily consist of managerial duties and that the beneficiary served as a member of the senior management team. The AAO found that the Director erred in focusing on the number of employees without looking at preponderance of the evidence presented which included evidence that the foreign staff performed many of the day to day sales duties required and thus, although the beneficiary may be required to perform some administrative or operational tasks, he primarily manages an essential function of the Petitioner. The case is Matter of Z-A- Inc. –

Minnesota Promotional Marketing Company Liable for I-9 Violations

The Office of the Chief Administrative Hearing Officer (OCAHO) found International Packaging Inc., a Minnesota-based promotional marketing company liable for failing to prepare or present Forms I-9 for 21 of its employees and for substantive errors found in 73 Forms I-9. Form I-9 is used to confirm an employee’s identity and work authorization. Fines have yet to be levied but the government is arguing for baseline penalties of $935 for each violation. The judged stated that employers may be entitled to a “good faith” defense for paperwork technical or procedural violations but that defense has no application to substantive violations, such as those in this case. This is the second recent decision against a Minnesota employer by OCAHO. Last week, as we blogged, Golden Employment Group Inc. was found liable for over 465 Form I-9 violations.

Notice of Filing Is Not Required to List Every Job Duty and Requirement

The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that the notice of filing that must be posted before a labor certification is eligible to be filed is not required to list every job duty and requirement of a position that is being sponsored. In Matter of Eteam, Inc., the employer sponsored the position of “Programmer Analyst.” On the Form 9089, the employer specified that the position required a master’s degree in Computer Science or Engineering and one graduate course in database management and network security. This post-secondary education must have included software development using Unix and Perl. The case was audited and the employer submitted a notice of filing that did not state the education requirement or the coursework requirement of this position. The Certifying Officer denied the case on this basis. The case was appealed. BALCA reviewed a prior case, Architectural Stone Accents, Inc., which held that the federal regulations that govern notice of filings do not require every job requirement to be listed. While BALCA reiterated that notice of filings play an important role in ensuring that employees can provide information to a Certifying Officer about an employer’s application, it reiterated that the federal regulations “only require the [notice of filing] to contain information specific enough to apprise the U.S. workers of the job opportunity. The Employment and Training Administration did not write a regulation that mandates the employer list specific job requirements in a [notice of filing].” Consequently, BALCA determined that the notice of filing offered by the employer in this case was sufficiently detailed to inform U.S. workers of the job opportunity and overturned the decision. This case provides critical information about the content requirements of notice of filings.

May Visa Bulletin

The Department of State (DOS) recently released the May visa bulletin. There were no changes to the “dates of filing” chart. The movement of the dates in the “final action chart” was disappointing. Many categories did not progress at all. The DOS warned that the pattern of downgrades from EB2 to EB3 by Chinese nationals has resulted in no movement for that category which may last through the remainder of the fiscal year.

Temporary Employment Company Liable for Over 465 I-9 Violations

The Office of the Chief Administrative Hearing Officer (OCAHO), recently found a temporary employment company, Golden Employment Group Inc., located in Minnesota, liable for over 465 I-9 violations (United States of America v. Golden Employment Group Inc., OCAHO Case Number 15A00037). Specifically, the Judge found that they failed to timely present 125 Form I-9s and failed to prepare 236 Form I-9s. They also racked up fines for not making sure the employee completed Section 1 of the Form I-9 and other infractions. 40 claims were dismissed because Immigration and Customs Enforcement failed to overcome its burden of proof. This case serves as a warning that use of E-Verify does not protect an employer from failing to properly prepare, retain, re-verify and present when asked a Form I-9 for employees hired after November 6, 1986.

236,000

The USCIS announced that it received 236,000 H-1b cap petitions filed for the 85,000 spots available. They have completed the lottery process and have started to issue receipts. Last year, it took almost 4 weeks for all receipts to be issued. Premium processing cases will begin to be processed on May 16, 2016.

HLG’s April newsletter !

The April 2016 edition of the HLG Immigration Advocate is now available. The issue includes a feature article by HLG partner, Phil Eichorn on the recent OPT STEM program changes.

H-1b Cap Reached !

In news that surprised no one, the USCIS announced today that it had received a sufficient number of filings to reach both the 20,000 U.S. masters quota and the 65,000 regular quota thus requiring that a lottery will be held. They went on to state that they did not know when the lottery would be conducted due to the large number of filings received. Stay tuned for further updates.

Known Employer pilot

DHS has created the Known Employer pilot, which is a pilot program intended to facilitate the process for employers looking to hire workers through employment-based visa applications. The Known Employer pilot is expected to reduce paperwork and delays in processing.

Under the Known Employer pilot, employers will file an application that requests that USCIS predetermine certain requirements. The requirements mainly relate to the employer’s corporate structure and financial health. When making the request for predetermination, employers will create a profile in the web-based Known Employer Document Library (KEDL). The employer will then have to upload documents related to the requirements. Employers will also have to complete and upload Form I-950, Application for Predetermination under Known Employer Program. USCIS officers will then review the documents and predetermine whether the employer has satisfied the requirements for each classification requested.

If USCIS approves the employer’s predetermination request, the employer may then file the immigration petitions or applications for individual employees without needing to resubmit evidence already submitted with the predetermination request with each individual petition or application. Generally, employers must submit the same information about their organization with each petition and/or application. The pilot program would eliminate the need to resubmit documentation.

USCIS is not accepting applications for participation in the Known Employer pilot but we will keep updating the blog with more information about the Known Employer pilot as more news comes out.