The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned the denial of a labor certification case that was submitted through the mail on the basis that the employer’s signature on the labor certification established that it was sponsoring the foreign worker. In Matter of La Hacienda Meat Market, Inc., the employer submitted a labor certification for the position of “Buyer / Produce.” The employer mailed the ETA Form 9089 to the Department of Labor because the employer was unable to pre-register electronically with the Atlanta National Processing Center. The mailed-in labor certification included a signature from the President of La Hacienda Meat Market in the employer’s declaration section. The Certifying Officer attempted to contact the employer three times by telephone to confirm sponsorship, but was unable to reach anyone. Consequently, the case was denied. BALCA reviewed the decisions of a number of cases that involved similar fact patterns and determined that “when an ETA Form 9089 is submitted via mail and includes the employer’s sworn statement under penalty of perjury certifying as to the conditions of employment offered, sponsorship is adequately verified.” Thus, the denial was overturned. While it is preferable to submit a labor certification through the online system, this case provides guidance that establishes that an employer’s signature on the ETA Form 9089 is sufficient to confirm sponsorship.
The Washington Alliance of Technology Workers (WashTech) continues its lawsuit in an attempt to end STEM OPT. On Feb. 4 WashTech sought review of the Aug. 12 order from U.S. District Judge Ellen Segal Huvelle, which vacated the 2008 rule extending the OPT period for foreign students with science- and math-related (STEM) degrees by 17 months, but allowed the U.S. Department of Homeland Security to reissue the regulation through the notice and comment process.
DHS last month said the district court shouldn’t have even reached the merits of the dispute, contending that WashTech doesn’t have legal standing because it hasn’t shown its members were harmed by the rule. WashTech counters that its standing is based on a group of American computer professionals are challenging regulations designed to create a “significant expansion” of foreign workers in their field of employment.
In its current appeal, Judge Huvelle found the group didn’t have standing to challenge that aspect of the program, as its members hadn’t alleged injuries earlier than 2008. She also found the claims were barred by the statute of limitations. WashTech “has not identified a single member demonstrating ongoing or imminent competitive injury caused by the existence of the pre-or-post 2008 version of the OPT rule,” it wrote. “The absence of such evidence means no Washtech member is ‘a direct and current competitor whose bottom line may be adversely affected by the challenged government action.’”
WashTech is grasping at straws as its one argument of merit, that the original 2008 rule was procedurally deficient, will be overcome once the new proposed STEM rule completes its notice and comment period. The new rule is expected to be published in the federal register on or before May 10, 2016.
The U.S. Department of Homeland Security will have 90 additional days to revise the F-1 STEM OPT rule. The original rule, allowing for 17 months of additional OPT time if the student was in a STEM field, was order to be vacated as of February 12, 2016. U.S. District Judge Ellen Segal Huvelle granted DHS’s request to extend the expiration date terminating the original rule so that the agency can avoid a regulation gap. USCIS now has until May 10, 2016 to revise and publish the new STEM OPT rule.
USCIS requested this extension citing the need for more time to review the more than 50,500 comments it received on its replacement rule and argued that allowing the old optional practical training regulation to expire next month would hurt tens of thousands of students relying upon it. The comment period ended November 18, 2015. Judge Huvelle agreed, starting that the significance of the undue hardship to STEM OPT participants and employers that warranted the stay in the first place “cannot be understated.”
Yesterday, the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) announced that it is experiencing problems with its iCERT system. While the iCERT Systems’ application and database are working correctly, the network infrastructure that supports the system is having performance issues that are causing delays in processing cases. These delays are currently impacting H-1B, H-2A, and H-2B cases. OFLC has not stated when it expects these problems to be resolved. The Hammond Law Group will keep you updated as further announcements are made on this issue.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the failure to include the name of the employer on a notice of filing is fatal to a PERM application. In Matter of G.O.T. Supply, Inc., the employer submitted an Application for Permanent Employment Certification for the position of “Welder-Fitter.” The case was selected for audit and the Certifying Officer (“CO”) denied the case on the basis that the employer failed to include its name in the notice of filing. In response, the employer argued that any potential employee would be able to identify the name of the employer because the notice of filing listed the employer’s President’s name and was posted at the employer’s premises. Alternatively, the employer argued that the failure to include the employer’s name in the notice of filing was a harmless error. In reviewing the case, BALCA reiterated that the federal regulations specify that the notice of filing must contain the name of the employer. It also stated that the notice of filing is “not a mere technicality, but is an implementation of a statutory notice requirement designed to assist interested persons in providing relevant information to the CO about an employer’s certification application,” and, thus, is not “to be lightly dismissed under a harmless error finding.” BALCA determined that in failing to provide the employer’s name, an individual who hoped to provide information to the CO about the application would be thwarted due to their inability to provide the name of the employer. Consequently, the denial was upheld. In drafting notice of filings, it is important that employers include all of the information specified in the advertisement content requirements that have been specified for the PERM program.
On January 13, U.S. District Judge Stephen V. Wilson refused, Chain-Sys Corp.’s, a Michigan technology company, motion for summary judgment accusing U.S. Citizenship and Immigration Services officials of improperly denying an L-1B visa for a programmer from India, saying the agency had a reasonable foundation for its decision. Chain-Sys, which creates software applications, most notably for software giant Oracle Corp., had sought an L-1B visa for its employee, Anbarasan Murugan, a senior project manager and technical specialist at Chain-Sys who had worked for the company in India for eight years. Chain-Sys has been arguing two points. First, the agency was wrong to determine both that Murugan’s knowledge of the company’s proprietary software was not itself specialized knowledge; and second that Chain-Sys hadn’t shown that others employed in the industry couldn’t easily acquire Murugan’s knowledge.
As to the first argument, the judge noted that the fact that a person works with proprietary information or has a high level of technical skill is not enough to establish specialized knowledge under the USCIS’ interpretation of federal immigration law. As to the second argument, the judge said he couldn’t conclude that USCIS “was compelled to find that it would take years to impart Murugan’s knowledge alone on another individual already in the industry.” In general, it is safe to assume that your company’s propriety technology is not commonly held, is complex and is difficult to impart to others. However, this decision shows that when petitioning for an L-1B employee it is still best to demonstrate as many as the factors that show specialized knowledge as possible, even though the presence of one or more of these (or similar) factors is sufficient in some cases to establish that a beneficiary has specialized knowledge.
The Consolidated Appropriations Act, 2016 (Public Law 114-113) was signed into law on December 18, 2015 and increased the fee for certain H-1B and L-1 petitioners. USCIS issued a web alert today that the additional fee now applies when a petitioner employs 50 or more individuals in the United States, with more than 50% of those employees currently in H-1B or L (including L-1A and L-1B) nonimmigrant status.
The additional fee must be included (1) with new petitions seeking H or L status or (2) when the petitioner seeks to have the nonimmigrant in H or L status change employers.
This is a departure from what the previously published regulations on the topic indicated, which also required the additional fee for extensions of H or L status. As things stand today, these are the only types of petitions that requires the additional fee but based on the back and forth that has surrounded this rule’s roll out, we will not know for sure until USCIS revises its instructions for the Form I-129.
The Department of State (DOS) has released the February visa bulletin and there were no surprises. The “date for filing” chart remained unchanged and the “final action dates” chart fka priority date chart continued its steady progress aimed to reach the dates for filing chart by the end of the fiscal year.
The DHS has released the long anticipated proposed regulation which promised to provide greater portability to H-1b workers with approved I-140’s. A copy of the complete rule can be found here. Comments on the proposed rule are due on Feb 29, 2016 and the rule is not in effect until it becomes final, sometime after the comment period. Our office will be providing a detailed summary to clients next week. I hate to throw cold water on what should be a day of celebration but, a quick read through does not indicate that the portability provisions are as gracious as promised. There are however, other really good provisions which will be very positive for international professional workers and their employers. Happy New year and we wish everyone a great 2016.