Green Cards

BALCA Notes Timing Inconsistency in 20 C.F.R. § 656.17(e)(2)

The Board of Alien Labor Certification Appeals (“BALCA”) recently reviewed timing inconsistencies that are listed in the federal regulations that govern the recruitment validity periods for labor certifications. The employer submitted a labor certification for a “Stonemason.” The Form 9089 was mailed to the Department of Labor on September 11, 2009 and received by this agency on September 14, 2009. The employer listed on the Form 9089 that it had placed a state workforce agency job order from March 17, 2009 until April 15, 2009. The Certifying Officer (“CO”) denied the application because it stated that the job order was placed more than 180 days from the date that the Form 9089 was filed. BALCA reviewed 20 C.F.R. § 656.17(e)(2), which states that “if the application is for a nonprofessional occupation, the employer must . . . place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.” BALCA noted that these statements can be contradictory. In the instant case the employer did submit its application within six months of March 17, 2009 because six months from this date is September 17, 2009. However, there are more than 180 days between March 17, 2009 and September 14, 2009. Consequently, BALCA stated that it would “decline to penalize an employer for the inconsistency [of the federal regulations].” While this case does support the idea that recruitment may occur in the six months prior to filing a labor certification, Hammond Law Group urges employer’s to file all cases within the 180 day period in which recruitment occurred to avoid the potential for denial.

June Visa Bulletin

The Department of State (DOS) has released the June Visa Bulletin. As expected, the “dates for filing” chart remained unchanged. Unfortunately, due to high demand from I-485 filings, the “final action date” chart saw major retrogression in the India EB2 and PRC EB2 and EB3 categories. In commentary, the DOS stated that India EB2 is expected to advance forward only a few weeks each month through the end of the fiscal year (Sept 2016). The news is worse for both EB2 and EB3 PRC which are not expected to move forward at all until the new fiscal year (Oct 2016). Retrogression remains a major problem for legal immigrants but, is likely to receive no legislative attention in the foreseeable future.

Filing Fee Increases Proposed

At a time when the USCIS processing times for H-1 petitions and extensions have grown to over 10 months, the USCIS has decided to reward themselves with an increase in revenue on the backs of US employers and international workers. Today, the USCIS released a proposed schedule of fee increases. Pursuant to the APA, the public is afforded 60 days to submit comments. Our firm plans on submitting comments on behalf of our clients. Of the most commonly used filings by US employers, the I-129 base fee will be increased from $325 to $460; the I-140 from $580 to $700; and, the I-485 from $985 to $1140. The last filing fee increases for the base petitions occurred in 2010. The USCIS claims that the fee increases are necessary to provide service to its customers. What a sad statement.

BALCA Affirms that Content Requirements of 20 C.F.R. § 656.17(f) Don’t Apply to Job Orders

The Board of Alien Labor Certification Appeals (“BALCA”) recently affirmed that the content requirements that are specified in the federal regulations for newspaper advertisements in 20 C.F.R. § 656.17(f) do not pertain to state workforce agency job orders. The employer submitted a labor certification for the position of “computer software engineers, systems software” and specified in the Form 9089 that the position required five years of experience. The case was audited and denied because the job order that the employer provided stated that the position had an experience requirement of “greater than 5 years.” The employer appealed the decision and noted that the Illinois state workforce agency job order site only provided a set number of experience options that included “3-5 years” and “greater than 5 years.” The employer stated that it choose the option of “greater than five years because it was the most appropriate since ‘3-5 years’ was not an accurate reflection of tis experience requirement.” BALCA reviewed Matter of Chabad Lubavitch Center, 2011-PER-2614, and noted that the requirements of 20 C.F.R. § 656.17(f) only apply to “advertisements placed in newspapers of general circulation or in professional journals.” BALCA also found that the federal regulations that govern job orders are silent in regards to whether the content requirements of 20 C.F.R. § 656.17(f) apply to job orders, which lead it to believe that the Department of Labor “did not intend to impose these content requirements on all types of advertisements.” Many state workforce agencies provide limited options in regards what can be selected for experience requirements. This case instructs the DOL that it may not deny cases when the state workforce agency fails to allow employers to specify the exact requirements of the position.

Notice of Filing Is Not Required to List Every Job Duty and Requirement

The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that the notice of filing that must be posted before a labor certification is eligible to be filed is not required to list every job duty and requirement of a position that is being sponsored. In Matter of Eteam, Inc., the employer sponsored the position of “Programmer Analyst.” On the Form 9089, the employer specified that the position required a master’s degree in Computer Science or Engineering and one graduate course in database management and network security. This post-secondary education must have included software development using Unix and Perl. The case was audited and the employer submitted a notice of filing that did not state the education requirement or the coursework requirement of this position. The Certifying Officer denied the case on this basis. The case was appealed. BALCA reviewed a prior case, Architectural Stone Accents, Inc., which held that the federal regulations that govern notice of filings do not require every job requirement to be listed. While BALCA reiterated that notice of filings play an important role in ensuring that employees can provide information to a Certifying Officer about an employer’s application, it reiterated that the federal regulations “only require the [notice of filing] to contain information specific enough to apprise the U.S. workers of the job opportunity. The Employment and Training Administration did not write a regulation that mandates the employer list specific job requirements in a [notice of filing].” Consequently, BALCA determined that the notice of filing offered by the employer in this case was sufficiently detailed to inform U.S. workers of the job opportunity and overturned the decision. This case provides critical information about the content requirements of notice of filings.

May Visa Bulletin

The Department of State (DOS) recently released the May visa bulletin. There were no changes to the “dates of filing” chart. The movement of the dates in the “final action chart” was disappointing. Many categories did not progress at all. The DOS warned that the pattern of downgrades from EB2 to EB3 by Chinese nationals has resulted in no movement for that category which may last through the remainder of the fiscal year.

HLG’s April newsletter !

The April 2016 edition of the HLG Immigration Advocate is now available. The issue includes a feature article by HLG partner, Phil Eichorn on the recent OPT STEM program changes.

BALCA Affirms that Additional Recruitment Steps May Be ‘Broadly Worded”

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether advertisements that constitute part of the additional recruitment steps for a labor certification case must identify the job location. In Matter of Screen Printers Resource, Inc., the employer submitted a labor certification for the position of “International Sales and Service Business Development.” The case was audited and, ultimately, denied because the Certifying Officer (“CO”) determined that the employer’s website posting did not list the job location. The CO argued that U.S. workers may be unwilling to apply for a position that did not list a job location. BALCA reviewed Matter of Symantec Corp., which found that the advertisement content requirements that are imposed on newspapers of general circulation are not applicable to the additional recruitment steps. These additional steps must only advertise the occupation involved in the petition and may be “broadly worded.” BALCA reviewed the employer’s advertisement and stated that it “described the title of the job, the responsibilities of the job, the educational, work experience, and knowledge requirements of the job, and where the applicant could email or fax a resume.” While BALCA stated that the advertisement was “not detailed, it is not misleading.” Consequently, the denial was overturned. This case further confirms that the advertisements placed as part of the additional recruitment steps that are conducted in the PERM process do not have to be as detailed as those placed in a newspaper of general circulation.

BALCA Provides Information About Proof of Additional Recruitment Steps

Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether dated screenshots and a CD with an audio recording of a radio advertisement constituted sufficient proof to establish that these additional recruitment steps occurred as part of the PERM process. In Matter of Waldorf School of Orange County, the employer submitted a labor certification case for the position of “Teacher.” The case was audited and the employer provided screenshots from its website that included the date and time to establish that it had posted the position on its website. The employer also provided a CD that included an audio copy of the posted advertisement that was placed on the radio and the broadcast contract. The Certifying Officer (“CO”) denied the case on the basis that screenshots did not constitute dated copies of the website posting as required under the law. The CO also stated that the employer failed to provide a copy of the text of the radio advertisement. BALCA reviewed the denial and reiterated that the “documentation requirement [for website postings] should be read with a degree of flexibility.” BALCA determined that screenshots are “dated copies” of the posting on the employer’s website and that an employer “need not submit a written text of a radio advertisement.” Rather, an audio recording is sufficient proof of the text of the advertisement that was carried on a radio station. Consequently, this denial was overturned. This case provides helpful information about how employers can document postings on their website and on radio stations to establish that they conducted the additional recruitment steps that are required as part of the labor certification process.

April Visa Bulletin Released

The Department of State (DOS) has released the April Visa Bulletin There were no surprises. The “dates for filing” chart remained unchanged and the “final action dates” saw forward movement at a pace similar to past months. With only 5 months left in the fiscal year, several of the EB3 categories need to pick up the pace to arrive at the “file date” by Oct 1st.