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.
Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage.
There has been reported delays in the production of I-765 and I-485 cards. This is due to the USCIS card production facility in Corbin, KY undergoing maintenance. All card production has been switch to another facility and of course that facility is now backlogged. If you are expecting an I-765 or I-485 card from a recently approved petition expect an additional 2-3 week delay in receiving your card in the mail. USCIS expects to resolve this issue sometime in September.
The Department of State has released the last Visa bulletin of fiscal year 2015. Priority dates will often retrogress or even become unavailable in the September bulletin as allocations for the fiscal year are exhausted and the EB2 categories for both India and China saw retrogression of some significance. It is noteworthy that dates continued to stay almost “current” for EB3 all other countries (ROW) and that dates actually moved forward for Philippines EB3 and India EB3. The October visa bulletin will be anxiously awaited. Legislation remains sorely needed to address retrogression and the long visa waits.