On November 20, 2015, the USCIS released its draft memo on Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability for comment. A copy can be found here. The memo details how Officers should evaluate two different sets of job duties as they relate to Standard Occupational Classification (SOC) codes. Of note, is that the same or similarity of the two position can be shown if the jobs are found within the same broad occupational group code, the first 2 digits. Officers are also instructed to take an individual’s career progression into consideration and they may also consider the difference in the individual’s wages. The comment period end January 4, 2016.
The Department of State (DOS) has released the December Visa Bulletin and as expected, several categories saw forward movement consistent with the “projections” inherent in the “Dates for filing” chart. The December bulletin also contained some projections for the next several months which indicated that we may see even faster than expected forward movement for the EB3 all other category, EB2 India, and EB3 China categories.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether candidates that a state workforce agency matched to an open position must be considered applicants for purposes of preparing a recruitment report as part of the PERM process. In Matter of Lakha Enterprises, Inc., the employer submitted a labor certification case for the position of “Cook.” The case was selected for supervised recruitment. The employer submitted documentation that a job order was placed with the Illinois State Workforce Agency (“ISWA”) and that the number of matches was 0 and the number of recruiting outcomes was 20. In preparing the recruitment report, the employer did not list the candidates who were listed by the ISWA as part of the recruiting outcome because these candidates did not affirmatively apply for the job. Rather, these candidates only “inquired about the job posting by viewing it, and did not actually apply for the job.” The Department of Labor denied the case on the basis that these 20 candidates were not listed in the recruitment report. In reviewing the case, BALCA considered the DOL’s FAQ’s which state that an “employer is responsible for considering / contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.” BALCA found that the job order in this case instructed applicants to apply through submitting a resume to the employer. However, none of the 20 candidates submitted a resume. Thus, they did not affirmatively apply for the position. BALCA reversed the denial on the basis that these 20 individuals were not actually candidates for the position because they did not affirmatively apply for it. This case establishes that individuals who are matched to an employer who has submitted a job order as part of the PERM recruitment process will not be considered applicants unless they actually apply for the posted position.
The DOL has released final data for FY 2015 for the PERM program. Almost 70% of applications were filed for IT and engineering positions and almost half of all filings required an advanced degree. The approval rate for cases adjudicated was over 90%. The data and processing times suggest a backlog is forming as they have almost 60,000 cases pending and only processed 85,000 cases during the year. Audit cases are taking almost 18 mos. for review and at present, over 13% of pending cases are under audit review with another 9% under appeal. The President’s directive to look at ways to modernize the PERM program will hopefully address these and other issues.
The Board of Alien Labor Certification (“BALCA”) recently considered whether a wage range that is listed on the Form 9089 must match the wage listed on a notice of filing. In Matter of Doloma, Inc., the employer submitted a labor certification for the position of retail store manager. In the labor certification, it listed a wage range of $15.78 to $18.00 per hour. The case was audited and the employer submitted a notice of filing as part of its audit response that listed the wage for the position as $16.00 per hour. The Certifying Officer (“CO”) denied the case on the basis that the wage listed on the notice of filing was lower than what was stated in the labor certification form. The case was appealed and BALCA determined that the federal regulations provide that “advertisements must ‘not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.’” Since the notice of filing failed to mention that the sponsored position could earn a wage that went up to $18.00 per hour, it did not properly disclose the job opportunity to U.S. workers. Consequently, BALCA upheld the denial. Through this case, BALCA reminded employers that the wage information provided in recruitment that is conducted in a PERM case must provide consistent information regarding the job opportunity.
The Federal District Court has denied a request for a TRO (temporary restraining order) requiring the USCIS to accept I-485 filings based upon the initial October Visa Bulletin. Essentially, the Court stated that the government had a good reason for changing the Visa Bulletin and the Plaintiffs had not established a legal cause of action. “its not fair” is not considered a legal basis. We will keep you updated as more developments occur.
Late on Monday, a Federal lawsuit was filed in the District Court for Washington against the DOS and DHS over the revised October Visa bulletin. Check out a copy of the lawsuit here courtesy of our friend and excellent attorney Carl Shusterman. The lead attorney on the lawsuit is Greg Siskind. Follow him on twitter @gsiskind for updates.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered Matter of SDG Post Oak, LP. In this case, the employer sponsored the position of a “Line Cook.” The case was selected for supervised recruitment and the Department of Labor (“DOL”) instructed the employer to post the position through the Beaumont Enterprise’s Hotjobs / monster.com site. In drafting the labor certification, the employer stated that the minimum requirements were six months of experience as a line cook or six months of related experience in restaurant food preparation. However, in the caption above the text advertisement on the monster.com site, the experience requirements were listed as one to two years. The DOL denied the case on the basis that the advertisement failed to list the employer’s true minimum requirements. In response, the employer submitted documentation from the Beaumont Enterprise that “it selected the advertisement header without the employer’s or legal counsel’s knowledge and consent.” The employer stated that any candidate could have read the full description of the position provided below the advertisement header to learn the requirements of the position. In reviewing the case, BALCA determined that the employer had followed the recruitment instructions provided by the DOL, and the “header added to the advertisement by the publisher was not part of that advertisement.” Furthermore, BALCA stated that “the possibility that the header materially impacted the supervised recruitment results is unlikely.” Consequently, the denial was overturned. This case establishes that employers should not receive denials in cases where the advertisement publisher inserted information into a header or other drop box.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered when the validity period of an ongoing employee referral program begins. In Matter of Mphasis Corporation (successor in interest to AIG Systems Solutions Private Limited), BALCA reviewed a case that was denied on the basis that the recruitment conducted by the employer for the position of “Senior Programmer Analyst” did not occur within the validity period of the prevailing wage determination. Specifically, the employer stated on the Form ETA 9089 that it conducted an employee referral program starting on July 1, 2007. However, the prevailing wage determination validity period was from July 9, 2007 until October 10, 2007. The case was not filed until October 19, 2007. In response to the denial, the employer provided evidence that its employee referral program is ongoing and had been in existence since 2003. Consequently, BALCA determined that the “precise question for determining when the recruitment on the [employee referral program] commenced is when the company employees know a vacancy exists for which they can make a referral.” In reviewing the evidence, BALCA found that the employees were not alerted to this position until it was promoted internally on September 20, 2007. As a result, BALCA determined that the employee referral program did occur within the prevailing wage determination validity period and the denial was overturned. This case provides critical information about when an ongoing employee referral program is considered to have begun.
The Department of State released the October Visa bulletin today and it contained great news for individuals affected by retrogression. The new bulletin contains a 2nd chart identified as ” Dates for filing of employment based applications.” This second chart allows for the filing of an I-485 prior to one’s priority date becoming current. This will allow a person to obtain an EAD and AP sooner than expected. For example, if you are from India in EB3 and you have a priority date prior to July 1st 2005, you can file your 485 in Oct. If you are from the Philippines and you have a priority date prior to Jan 1, 2015, you can also file. Contact your attorney at HLG if you think you may qualify under this new bulletin.
The USCIS issued a press release providing more information about this change.
Unfortunately, the priority dates did not progress as rapidly as expected as the Philippines EB3 only moved to Jan 2007 and India EB2 actually retrogressed to May 2005. The all other countries category (ROW) remained virtually current.