If you are interested in learning more about the political voices that are influential in the CIR debate, here is a nice concise article.
On August 25, 2014, the Office of Foreign Labor Certification (OFLC) implemented new password requirements for enhanced security. As such, on or before November 23, 2014, all Permanent Case Management System (PERM) users will be required to change their existing passwords. In addition, PERM users will be required to change their passwords every 90 days. The PERM system will send PERM users’ reminder emails as these dates approach. Please refer to the External PERM Quick Start Guide which can found via the following link for instructions on how to properly change an existing PERM password: http://www.foreignlaborcert.doleta.gov/pdf/PERM_QstartGuide_ExAcct_Mgmt_LB.pdf. A word of warning, if an existing PERM password is not changed with the 90 day period, the PERM user will need to re-activate their account by identifying themselves, selecting a secret question and providing the correct answer.
The Department of State has released the October Visa Bulletin and all EB3 categories saw forward movement with the EB3 Philippines and the All Other categories surging forward 6 months. Unfortunately, EB2 India saw no forward movement and the DOS predicted that retrogression in this category could come as early as Nov. As a practical matter, this means that if you are in the EB2 category and your priority date is current, get your I-485 filed by the end of October and if you are already filed, respond to any RFE’s as quickly as possible as the window is closing quickly.
En Banc Panel of BALCA Reverses CO’s Denial on Advertising Content Requirements for Additional Recruitment Steps
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the content requirements of advertisements that are placed as part of the additional recruitment steps in labor certification. In Matter of Symantec Corporation, the employer chose to place an advertisement on a job search website as one of the three additional recruitment steps that are required in the labor certification process for professional occupations. The Certifying Officer (“CO”) denied the case on the basis that this advertisement included a travel requirement that was not listed on the ETA 9089. Specifically, the advertisement stated that the individual filling the role “may be required to work . . . at various unanticipated sites throughout the United States.” The CO stated that this violated provisions of the federal regulations that discuss the content requirements for the mandatory recruitment steps and referenced Credit Suisse Securities (USA) LLC for support of the idea that the advertising content requirements of the additional recruitment steps must match those that are demanded of the mandatory recruitment steps. After receiving a request from the CO, an en banc panel of BALCA reviewed the case and determined that the content requirements for the mandatory recruitment steps are not imposed on the additional recruitment steps. Specifically, this en banc panel reviewed the relevant regulations and found that they were silent on specific content requirements for the additional recruitment steps. Consequently, it found that the Department of Labor (“DOL”) “did not intend to impose these content requirements on all types of advertisements.” Instead, employers must only advertise “the occupation involved in the application” in the additional recruitment steps, not the “job opportunity.” Finally, BALCA reminded the DOL that a “CO may not deny a [PERM application] based on a petitioning employer’s failure to comply with an unwritten requirement that has no basis in the clear text of the regulations.” The Hammond Law Group applauds BALCA for clarifying the advertisement content requirements of the additional recruitment steps and for this well-reasoned decision.
For those of you holding out hope for Executive Action to address some of the needs of the immigration system, stop holding your breath. President Obama recently announced that he will still take action but, not until later. Many believe that he received significant negative reaction from within his own party over his planned actions and the fear was that his actions would sway the mid-term elections and hand the Senate to the Republicans. For now, we continue to live with antiquated laws and an agency beating its own drum.
With President Obama promising Executive Action to address U.S. immigration problems, many stakeholders including those from the tech industry have heavily lobbied for him to use his pen to address not, only the border crisis, DACA children, and the deportation system but, also retrogression, H-1b visas, and the like. The conventional wisdom says that the President will stay true to his core constituents and offer no relief to employment based (legal) interests beyond the H-4 employment rule which has already been subjected to a comment period and merely awaits final regulatory approval but, until he speaks, we can all dream a little. Check out Computerworld’s take on this subject.
HLG is pleased to announce that Lynette Guzzino has joined the firm. Lynette is a graduate of Loyola University New Orleans College of Law and the Thunderbird School of Global Management. Her practice will focus in the area of university professors, private and public researchers, and other individuals seeking immigration based upon their personal qualifications.
The Department of State (“DOS”) has announced that it has made substantial progress in resolving the performance issues with the Consular Consolidated Database. This database crashed in late July, which caused the DOS to be unable to issue visas to applicants. Since this problem affected Consulates throughout the world, the DOS was experiencing a significant backlog. It appears that the Consular Consolidated Database is operational again. The DOS has issued visas to applicants who were part of the backlog throughout the world. Furthermore, the DOS stated that it is printing visas for all cases with very little delay. At this time, individuals who were delaying making travel plans due to concerns about whether a visa would be issued in a timely manner can begin to arrange for trips abroad.
The DOS has released the September Visa Bulletin, and as is typical for the last bulletin of the fiscal year, most categories saw no movement however, EB2 India and EB3 Philippines saw forward jumps. There is great anticipation for the October Bulletin to see if India EB2 holds its ground or retrogresses.
Our friends to the north have been observing our current immigration system and have noted that the US policy and practice at present is to refuse work visas to high tech workers (STEM grads), entrepreneurs, and specialized workers from international companies and have decided that they may be able to take advantage of our ineptitude. I can only imagine the discussion, maybe it went something like this (picture with a Molson and hockey in the background, of course) “Don’t you think we could use an influx of some smart, talented, tax-paying, revenue creating international workers, Eh ?” Seems so simple doesn’t it, Washington DC ! With the current culture of NO so prevalent at the USCIS service centers and the failure to produce any immigration reform that among other things addresses, the over 20 year wait for a green card for an Indian national IT engineer, it is not surprising that scores of quality international workers will seek alternative opportunities and that other industrialized nations will seek to create options for them. We can only hope that they will use their Canadian resident cards to vacation in Florida and Arizona in the winter.