The Department of State has released the July Visa bulletin and there were no surprises. As expected the EB3 Philippines became unavailable and will likely remain that way until October. India EB2 did not progress and has likely seen its last forward movement until October. EB3 for all other countries saw another 6 week advance and is moving ever closer to current.
BALCA Upholds Denial of Labor Certifications Where Employer Failed to Provide a Signed Recruitment Report
In Matter of New York City Department of Education, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether a typewritten name could represent an electronic signature. The employer submitted labor certifications for the positions of “Students with Disabilities (Special Education) Teacher.” The cases were audited and the employer provided a recruitment report with the typed name of the employer’s signatory. The cases were denied on the basis that the employer failed to provide a signed recruitment report. The employer argued that the omission was not material and that the regulations do not require a handwritten signature on a recruitment report. In reviewing the requirements under 20 C.F.R. § 656.17(g)(1), BALCA noted that there is no distinction between handwritten and electronic signatures. However, BALCA also stated that there was no evidence that the employer intended the typewritten name to constitute a signature because the employer admitted that there was a “physically-signed copy of the report which was inadvertently omitted from the audit response.” Furthermore, BALCA noted that the typewritten name was not “preceded by the customary ‘/s/’ for electronic signatures, [which] suggests that the [signatory] did not execute or adopt the typed word with the intent to authenticate the document.” Consequently, BALCA upheld the denial of these cases. However, it did state that “there is indeed no indication [in the federal regulations] that recruitment reports, even those delivered by mail, require original signatures.” Through this statement, BALCA seems to indicate that original signatures are not required on recruitment reports. Given the miniscule distinctions made in this case though, the Hammond Law Group suggests that employers provide handwritten signatures on all recruitment reports to avoid the possibility of denials.
The DOL has released updated PERM stats which reveal some interesting tidbits. The number of PERM applications received this year over the same time period in FY 2014 is up over 25%. Of cases where a decision has been reached, less than 10% have been denied. Over 30% of cases are currently in audit review and almost 10% of cases are pending an appeal. Although it seems like everyone claims to have been filed under EB2, almost 50% of cases were filed under EB3 standards.
Ever wonder how the priority date cut-offs are established each month and been curious how the priority dates can fluctuate so drastically as if they are mere sailboats adrift in the wind ? You are not alone. Recently, a Federal Court of Appeals raised serious questions about Department of State procedures used to establish the dates. The Appellate Court closed their opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”. Further proceedings were ordered and this case is worth keeping an eye on.
On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a decision in which it discussed the meaning of “doing business” for EB-1 petitions. In Matter of Leacheng International, Inc., the Petitioner filed an Immigrant Petition for Alien Worker in the classification of multinational manager or executive. To qualify for this classification, it must be established that a petitioner has been doing business for at least one year. Doing business is defined as the “regular, systematic, and continuous provision of goods and / or services by a firm, corporation, or other entity.” See 8 C.F.R. § 204.5(j)(2). The Petitioner is an affiliate of an entity based out of Hong Kong. Both organizations are owned by a Chinese parent company. The Petitioner was responsible for importing and selling the parent company’s products in the U.S. Starting in 2012, the Petitioner began “providing marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate.” The case was initially denied on the basis that the evidence “does not indicate ‘doing business’ with independent corporations or entities’ for a full year preceding the filing of the petition, but rather ‘only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” In reviewing the case, the AAO determined that there was nothing in the regulations that requires that a “petitioner for a multinational manager or executive must provide goods or services to an unaffiliated third party.” Rather, a petitioner may prove that it is doing business “by demonstrating that it is providing goods and / or services in a regular, systematic, and continuous manner to related companies within its multinational organization.” In reviewing the evidence, the AAO instructed that the totality of the record should be reviewed and “the fact that a petitioner serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business.” This case provides important information on what types of activities will qualify as “doing business” for purposes of an EB-1 filing.
At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.