The Department of State has released the November Visa Bulletin and it contains a mix of bad news and good news depending upon your country of origin. If you are an EB2 Indian national, the news in not unexpected as it was predicted but, the retrogression of over 4 years to Feb of 2005 is nonetheless devastating. For EB3 Philippines and the rest of the world, a forward jump of almost 8 mos. is very welcome. The prognostications for upcoming months is similar in that no movement is expected for India EB2 however EB3 for the Phillippines and all other countries are expected to continue their rapid movement forward however, both may retrogress later in the fiscal year i.e. next summer. We will keep you updated as developments occur. A legislative fix for retrogression remains much needed.
The 11th Circuit Issues A Decision Stating that the Beneficiary of an Approved I-140 has Standing to Challenge its Revocation
In Kurapati et al v. USCIS et al, the United States Court of Appeals for the 11th Circuit reviewed whether the beneficiary of an I-140 had standing to challenge its revocation. In this case, USCIS had issued a notice of intent to revoke (“NOIR”) to the beneficiary’s employer, Worldwide Web Services, on the basis that it misstated a material fact in the I-140. At the time that the NOIR was issued, the beneficiary had ported his employment to a new employer and Worldwide Web Services had ceased to exist. Consequently, the beneficiary filed a response to the NOIR. The case was denied. The beneficiary filed an appeal of the denial with the Administrative Appeals Office (“AAO”) and filed a complaint in the U.S. District Court for the Middle District of Florida. The AAO rejected the appeal on the basis that the beneficiary had no standing to appeal the case. The U.S. District Court reached the same conclusion. In reviewing the case, the 11th Circuit referenced a 6th Circuit decision that found that the “beneficiary of an I-140 visa petition had constitutional standing because he suffered an injury that was fairly traceable to USCIS – the loss of an opportunity to become a permanent resident.” Similarly, the 11th Circuit found that the beneficiary’s relationship to this case was within the zone of interests that is protected by the Administrative Procedure Act. Consequently, he had standing to challenge the revocation of his I-140. This case provides further support for a beneficiary’s right to challenge the denial or revocation of an I-140 petition.
NSC recently issued clarification on its RFE vs. NOID issuance on I-140 petitions subject to Kazarian’s two-part analysis, such as petitions for Aliens of Extraordinary Ability and Outstanding Professors or Researchers. The issue with this review is that applicants in these categories basically must prove their case to CIS twice.
Kazarian is a 2 part analysis. The first part is relatively simple, the applicant must demonstrate that they meet the required number of criteria, for example 3 out of 10 or 2 out of 6. The second part is a “Final Merits Test” in which the adjudicating officer takes all the evidence presented as a whole to determine if the applicant has in fact met the requirement of their petition, that they are truly extraordinary or outstanding. In short, the officer decides the “quality” of the evidence used to meet the appropriate number of criteria.
The craziest part, if you cannot even meet the first part, the application does not demonstrate that you meet enough of the criteria, CIS issues an RFE to gather more evidence. However, if you meet the first part, but the officer determines that your evidence is not “quality” enough, CIS will issue a NOID!
I’m not really surprised that CIS is doing something backwards issuing NOID’s for petitions that meet most requirements (and the second analysis is basically up to the discretion of that officer) and RFE’s for petitions that meet none, but come on man that’s crazy.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued an en banc decision that discussed whether an employer must include its name on the notice of filing. In this decision, BALCA considered two cases where employers failed to include their corporate names. Both cases were denied by the Certifying Officer. In response to the denial, one employer argued that the omission of its name was harmless because the notice of filing stated “our company,” and any “interested persons would have been aware that ‘our company’ referred to [the employer] because the notice of filing was posted on the company’s premises.” The en banc panel reviewed prior case law and determined that the “vast majority of BALCA panel decisions have affirmed the denial of certification if the petitioning employer’s notice of filing did not include the name of the employer.” This panel stated that the PERM regulations require strict adherence to the regulatory provisions. Consequently, BALCA found that the “clarity of [the requirement of including the employer’s name on the notice of filing] and the ease with which an employer should be able to comply with this requirement belie any suggestion that strict enforcement of this requirement offends fundamental fairness or procedural due process.” As stated in prior blog posts, the PERM process is exacting and BALCA is very unforgiving of errors. The Hammond Law Group is always happy to assist employers with ensuring that all requirements set out in the PERM regulations are met.
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.
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.
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.