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.
The Department of Labor (“DOL”) recently released a FAQ on the information that should be included in recruitment reports. Recruitment reports are required to be prepared as part of the process of preparing a labor certification to be filed. The DOL specified that a recruitment report must include: (1) the total number of U.S. applicants who applied for the position, (2) the total number of U.S. applicants hired for the position, and (3) the total number of U.S. applicants who were rejected based upon a lawful job-related reason. The lawful job-related reasons for rejecting U.S. workers should be categorized. The DOL further specified that employers should list the total number of U.S. applicants who were interviewed and a list of the names of U.S. workers who were rejected under each category. Finally, if an applicant was rejected under multiple categories, the category that he is listed under must state the multiple bases of rejection. For instance, if a candidate was rejected because he did not have the necessary education and did not have the required total years of experience, he should fall under a category titled “candidates lacking the required education and experience.” The DOL specified that this type of categorization will “enable the certifying officer to clearly establish the reason for disqualification of each U.S. worker.”
Cadence Moore and Dwight Myfelt will be speakers at the American Staffing Association’s Staffing World in San Diego, CA from October 25th through October 27th. Cadence and Dwight will be speaking about recruiting in social media that will be part of the Thursday afternoon session. If you are attending, please make sure you attend one of their events.
Mike Hammond will be a speaker at the TechServe Alliance Annual Conference on Amelia Island, Nov 3rd-5th. Mike will be part of a legal panel focusing on compliance for IT and engineering staffing firms that will be part of the Fri afternoon session. He will be a facilitator at the opening session, Ultimate National Meet-Up on Thurs. and will host an industry “expert” lunch roundtable on Sat. If you are attending, please make sure you attend one of his events.
The Service’s annual 2016 report to the Ombudsman was recently release and contained concerning information for L-1 visa petitioners. Unfortunately, the RFE rates of L-1 visas appear to continue to have no rhyme or reason.
“L-1A RFE data shows inverse trending between the CSC and the VSC. For example, CSC’s L-1A rates surged to 55 percent in FY 2015, its highest level in 20 years, while in the same period, VSC’s rate dropped dramatically from a high of 44.6 percent in FY 2014, to 29 percent in FY 2015. The number of L-1B RFEs dropped in FY 2015 at both service centers, to 44 percent at the CSC and 33 percent at the VSC.” See Ombudsman Report p. 59.
The L-1 memo, L-1B Policy Guidance Memorandum, was supposed to help alleviate some of this uncertainty. “It does not appear that RFE rates in FY 2015 were affected by this guidance, as it did not become final until August 17, 2015.” See Ombudsman Report p. 59. A very small sample size granted, but this memo was supposed to be seminal in the L-1 category. I’ll be eagerly anticipating next year’s report. What we can take away is that it looks like you’ll have a slightly better chance of getting an L-1A through Vermont and that L-1B’s RFE’s have dropped but not as much as we were hoping for when the L-1B Policy Guidance Memo was released.
Customs and Border Protection recently announced that the website used to retrieve I-94 records will now allow travelers arriving at a land port of entry to pay the I-94 application fee of $6.00 online up to seven (7) days prior to their entry. Additionally, travelers will be able to complete the I-94 application online where they will be able to provide biographic and travel information. After submitting the online application, travelers will receive a provisional I-94. The traveler must present him/herself at the land port of entry within seven (7) days in order to finalize the process. The payment can be paid with credit card, debit cards, PayPal or through direct debit. This should result in shorter wait times for those arriving through a land port of entry.
The group of information technology workers know as Save Jobs USA, who claim that they were replaced by H-1B visa holders is now appealing a decision upholding a new U.S. Department of Homeland Security rule that would allow spouses of certain H-1B workers to apply for employment authorization, the H4 EAD rule.
On Wednesday, September 28, Save Jobs filed notice that it’s appealing to the D.C. Circuit, a day after U.S. District Judge Tanya S. Chutkan of the District of Columbia found that Save Jobs lacks standing to proceed with its case. Save Jobs has argued that there isn’t “statutory authorization” for DHS to allow an H-4 visa holder to work, but Judge Chutkan said that despite the group’s lack of standing in the case, the court would likely conclude that the DHS’ interpretation of its authority under the Immigration and Nationality Act is not unreasonable and that the H-4 rule is valid.
Save Jobs basis for their appeal is the Fifth Circuit’s holding regarding the blocking of the expansion of Deferred Action for Childhood Arrivals (DACA). The Court had ruled that immigration law specifically defines the categories of immigrants allowed to work in the U.S. and that an Immigration and Nationality Act provision didn’t give the DHS the power to grant work authorization. This interpretation has been rebutted by DHS, pointing out that the cases address different questions. There appears to be no immediate danger of losing the H4 EAD Rule and those working under this authorization should continue to do so without hesitation.