The Federal District Court has denied a request for a TRO (temporary restraining order) requiring the USCIS to accept I-485 filings based upon the initial October Visa Bulletin. Essentially, the Court stated that the government had a good reason for changing the Visa Bulletin and the Plaintiffs had not established a legal cause of action. “its not fair” is not considered a legal basis. We will keep you updated as more developments occur.
Late on Monday, a Federal lawsuit was filed in the District Court for Washington against the DOS and DHS over the revised October Visa bulletin. Check out a copy of the lawsuit here courtesy of our friend and excellent attorney Carl Shusterman. The lead attorney on the lawsuit is Greg Siskind. Follow him on twitter @gsiskind for updates.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered Matter of SDG Post Oak, LP. In this case, the employer sponsored the position of a “Line Cook.” The case was selected for supervised recruitment and the Department of Labor (“DOL”) instructed the employer to post the position through the Beaumont Enterprise’s Hotjobs / monster.com site. In drafting the labor certification, the employer stated that the minimum requirements were six months of experience as a line cook or six months of related experience in restaurant food preparation. However, in the caption above the text advertisement on the monster.com site, the experience requirements were listed as one to two years. The DOL denied the case on the basis that the advertisement failed to list the employer’s true minimum requirements. In response, the employer submitted documentation from the Beaumont Enterprise that “it selected the advertisement header without the employer’s or legal counsel’s knowledge and consent.” The employer stated that any candidate could have read the full description of the position provided below the advertisement header to learn the requirements of the position. In reviewing the case, BALCA determined that the employer had followed the recruitment instructions provided by the DOL, and the “header added to the advertisement by the publisher was not part of that advertisement.” Furthermore, BALCA stated that “the possibility that the header materially impacted the supervised recruitment results is unlikely.” Consequently, the denial was overturned. This case establishes that employers should not receive denials in cases where the advertisement publisher inserted information into a header or other drop box.
The DHS/USCIS has forced the DOS to re-issue the October Visa Bulletin and has retrogressed the filing dates to July 1, 2009 for EB2 India, Jan 1, 2013 for EB2 China, and Jan 1, 2010 for EB3 Philippines. This action, which is eerily reminiscent of the fiasco in July 2007, can only be described as either a slap directly at President Obama and his executive actions or as utter incompetence in coordination and sharing of data between the USCIS and the DOS. The bottom line is that thousands of legal workers preparing to file I-485 applications next week will no longer be permitted to do so.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered when the validity period of an ongoing employee referral program begins. In Matter of Mphasis Corporation (successor in interest to AIG Systems Solutions Private Limited), BALCA reviewed a case that was denied on the basis that the recruitment conducted by the employer for the position of “Senior Programmer Analyst” did not occur within the validity period of the prevailing wage determination. Specifically, the employer stated on the Form ETA 9089 that it conducted an employee referral program starting on July 1, 2007. However, the prevailing wage determination validity period was from July 9, 2007 until October 10, 2007. The case was not filed until October 19, 2007. In response to the denial, the employer provided evidence that its employee referral program is ongoing and had been in existence since 2003. Consequently, BALCA determined that the “precise question for determining when the recruitment on the [employee referral program] commenced is when the company employees know a vacancy exists for which they can make a referral.” In reviewing the evidence, BALCA found that the employees were not alerted to this position until it was promoted internally on September 20, 2007. As a result, BALCA determined that the employee referral program did occur within the prevailing wage determination validity period and the denial was overturned. This case provides critical information about when an ongoing employee referral program is considered to have begun.
Herguan University’s former CEO, Jerry Wang, was sentenced to one year in prison and order to forfeit $700,000 for his part in a student visa scheme.
Mr. Wang admitted to submitting false document to the Department of Homeland Security’s (DHS) Student and Exchange Visitor Program (SEVIS) program. He also admitted to participating in a schedule to commit visa fraud involving 100s of Forms I-20, Certificate of Eligibility for Non-Immigrant Students, as well as allowing unauthorized access to the DHS computer database.
The fraud was uncovered by the Document and Benefit Fraud Task Force — an agency created by DHS, and the U.S. Departments of Justice, Labor and State to combat document and immigration benefits fraud — in an investigation spearheaded by ICE, the agency said.
With this case, ICE reaffirmed its intent to “aggressively target those who commit student visa fraud out of greed and self-interest. Their actions undermine the integrity of this country’s immigration laws and it will not be tolerated.”
The main reason Senator Grassley was troubled was because he believed that the new memo could result in hundreds of thousands of temporary foreign workers being admitted into the U.S. … wouldn’t that be terrible! Senator Grassley also believed that “A more liberal definition of ‘specialized knowledge’ that causes hundreds of thousands of additional L-1B workers to be admitted to the country will also accelerate the offshoring of jobs from the United States.” I am not sure which memo Senator Grassley read but the new L-1B has not “opened the flood gates” in the L-1B category. The memo still provides too much subjective review by Officers. The memo also does not provide bright line definitions of specialized knowledge as was originally hoped. However, if read carefully the memo provides guidance to petitioners as to what evidence best demonstrates specialized knowledge in USCIS’ eyes. Please see my article in ILW.com for a detailed review of the L-1B memo and a breakdown of the factors that tend to demonstrate specialized knowledge.
The Department of State released the October Visa bulletin today and it contained great news for individuals affected by retrogression. The new bulletin contains a 2nd chart identified as ” Dates for filing of employment based applications.” This second chart allows for the filing of an I-485 prior to one’s priority date becoming current. This will allow a person to obtain an EAD and AP sooner than expected. For example, if you are from India in EB3 and you have a priority date prior to July 1st 2005, you can file your 485 in Oct. If you are from the Philippines and you have a priority date prior to Jan 1, 2015, you can also file. Contact your attorney at HLG if you think you may qualify under this new bulletin.
The USCIS issued a press release providing more information about this change.
Unfortunately, the priority dates did not progress as rapidly as expected as the Philippines EB3 only moved to Jan 2007 and India EB2 actually retrogressed to May 2005. The all other countries category (ROW) remained virtually current.
Louisiana Crane & Construction LLC, which provides oilfield services, has agreed to pay $165,000 in civil penalties and create a $50,000 fund to pay workers who lost wages because of the company’s policy requiring workers who were not U.S. citizens to provide additional documents during the Form I-9 employment verification process. The company will also be required to conduct anti-discrimination training and be subject to monitoring for two year.
The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from requiring additional documents from workers during the employment eligibility verification process based on their citizenship status
This case is serves as evidence that the Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is continuing to ramp up its activities thanks in part to a 2010 agreement requiring the U.S. Citizenship and Immigration Services (USCIS) to refer discrimination matters to the OSC, along with any relevant information from the E-Verify system. As such, employers should be very careful to properly follow the employment verification regulations regarding proper completion of a Form I-9 and use of the E-Verify system.
The case is U.S. v. Louisiana Crane Co. LLC, case number 14B00102, before the U.S. Department of Justice’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer.