The August Visa Bulletin has been released and India EB2 and Philippine EB3 categories continued to see significant advancement while EB3 all other countries remained at April 2011. This bulletin is obviously welcome news for India EB2 but, it does come with a dire warning of future retrogression in this category possibly as early as September so the word of the day is to get your 485 cases filed quickly and your 485 RFE’s responded to as quickly as possible.
The DOL has published new prevailing wages which can be accessed at the FLCDatacenter. The new wages went into effect July 1st. These wages are the source used by the DOL in issuing prevailing wage determinations (PWD’s) utilized for PERM applications and certain other immigrant petitions. This on-line data is also commonly used by employers in determining the prevailing wage for H-1b petitions.
The Department of State has released the July Visa Bulletin and if you are India EB2 or Philippines EB3, you should be ecstatic as the your priority dates jumped forward almost 4 years and 1 year, respectively. Unfortunately, no other category saw significant movement and the EB3 all other country category saw no movement.
On May 22, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Kentrox, Inc. that considered how an employer could demonstrate that it is infeasible to train a U.S. worker for a position sponsored through labor certification. The employer filed a PERM case for the position of “Software Engineer” and stated that this position required 24 months of experience as a software engineer, software developer, or a related occupation. However, when the employer listed the alien’s work experience, it only listed his position with the sponsoring employer. The Certifying Officer (“CO”) stated in an audit notification that the alien’s experience was gained from working for the employer in a position that was identical to the one sponsored. Per the PERM regulations, an employee may not qualify for a position sponsored through labor certification by using his experience gained with the sponsoring employer in an identical role. In response, the employer argued that it was not feasible to train a new worker for this position and provided a detailed letter from its Vice President of Engineering. The CO denied the labor certification. In considering the case, BALCA reviewed prior case law and found that employers must meet a heavy burden to prove that it is infeasible to train. It stated that “documentation must show more than just inefficiency . . . and that [BALCA is] generally skeptical about claims of infeasibility to train.” However, in reviewing the letter from the employer’s Vice President of Engineering, it found that the employer had provided a number of specific examples of the position’s challenges, had explained the critical timelines involved in the work that the alien was performing, and explored why even qualified candidates would not be able to receive the necessary knowledge to perform effectively in this role. BALCA found that his statements were “thorough and specific, and [were] obviously written by a person with firsthand knowledge about whether training for the position . . . was feasible given the employer’s business situation.” Consequently, the denial was overturned. While this case does provide support for employers that wish to demonstrate that it is infeasible to train a U.S. worker, the standard in these cases is high and should only be considered after careful review of the relevant factors involved in the position.
On April 24, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) discussed whether or not advertisements in one newspaper could count as multiple recruitment steps. In Matter of Delta Search Labs, Inc., the employer sponsored the position of “marketing manager.” As part of its recruitment effort, it placed two Sunday advertisements in the Boston Globe. It also listed the position opening in the Boston Globe during the week. The employer argued that the advertisement placed during the week should count as recruitment in a local newspaper. The case was selected for audit and the Certifying Officer (“CO”) denied it on the basis that the employer had replicated a previously used recruitment step through placing a weekday advertisement in the same newspaper that the mandatory Sunday advertisements ran. The employer requested that the CO’s decision be reconsidered and submitted substantial evidence that showed that the weekday editions of the Boston Globe reaches a different population than the Sunday edition and has higher circulation numbers than any of its local competitors. Consequently, the employer argued that a weekday advertisement in the Boston Globe was the most appropriate medium to attract able, willing, and qualified candidates. In reviewing the case, BALCA stated that the Office of Foreign Labor Certification’s FAQ’s on PERM do not “address the issue of whether one publication could, based on its daily and weekend circulation figures, serve as both a local and general circulation publication.” Furthermore, BALCA also found that the regulations “do not specifically prohibit an employer from using the same newspaper as both a newspaper of general circulation and a local or ethnic newspaper, provided the newspaper satisfies both categories.” Consequently, the CO’s decision was reversed. While this case provides support for the idea that a newspaper could appropriately be used as a local newspaper and as a newspaper of general circulation, BALCA found support to reverse this decision in the fact that the CO did not make a determination about whether the Boston Globe could count as a local newspaper and a newspaper of general circulation. Employers who are considering using advertisements in one newspaper to fulfill the mandatory recruitment steps and as a local newspaper must carefully document why they believe that the newspaper meets both criteria.
The Department of State has released the June Visa Bulletin and it contains a mix of news. The bad news is that EB3 for Mexico and all other countries retrogressed by 18 months to April of 2011. Retrogression in this category was expected but, many of us thought it would not occur until July or August. It is expected to be temporary with the dates jumping forward again in the new fiscal year i.e. October. The good news was that the Philippine EB3 category entered 2008 and many people believe it will continue steady advancement due to a decline in EB3 RN filings in 2008 and 2009.
Recently, the DOL released data on PERM applications processed in the 2nd Q of FY 2014 which ended March 31, 2014. Approximately 10% of applications filed are being denied and almost 30% of applications filed are currently under audit review. Interestingly, the number of new applications filed has dropped by over 10% from FY 2013.
On April 15, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Celmac Technology Services LLC. In this case, BALCA relied on the American Immigration Lawyer’s Association’s (“AILA”) notes from an April 11, 2013 meeting with the Office of Foreign Labor Certification (“OFLC”) National Stakeholders’ Quarterly Meeting to find that an employee referral program was appropriately used as an additional recruitment step in a labor certification case. In this case, the Certifying Officer (“CO”) issued a denial based on the fact that it found that the employee referral program that the employer used was invalid. It reached this decision because the employer had a small number of employees and relied heavily on foreign workers in its information technology business. Consequently, the CO found that the employee referral program was “not a recruitment method most likely to bring response from available U.S. workers.” The case was appealed and the DOL did not submit an argument in response to BALCA’s Notice of Docketing. In considering the case, BALCA reviewed statements made by the OFLC in its meeting with AILA. At this meeting, AILA questioned the “validity of PERM denials based on the use of an [employee referral program] where the employer was deemed too small (anywhere from 5 to 50 employees).” In response, the OFLC stated that “those denials were issued in error, and have been reversed.” Since the DOL confirmed to AILA that these denials were erroneous and the DOL did not make any argument in support of CO’s position, BALCA overturned the decision. This case provides support for the idea that smaller employers can use an employee referral program as an acceptable additional recruitment step in a labor certification case. However, the Hammond Law Group suggests that employers only use these programs as an additional fourth recruitment step due to their inconsistent treatment by the DOL.
The DOS has released the May Visa Bulletin. The only category seeing a significant jump was the EB3 Philippines category. A few categories saw slight movement while others, including the “all others” EB3 category failed to advance. Congressional action to solve the retrogression issue is long past due.