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.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision discussing errors made in labor certifications. In Matter of APT –Advanced Polymer Technology, the employer sponsored the position of R&D Manager/ Chemist for labor certification and stated that it conducted recruitment through an employee referral program, a job search website, and the employer’s website. The case was selected for audit and the employer submitted proof that it had conducted recruitment through a job search website, its website, and on-campus recruitment. The audit response did not address the discrepancy between the evidence of on-campus recruitment provided in the audit response and the employee referral program that was listed in the ETA 9089. The case was denied by the Certifying Officer (“CO”) on the basis that no evidence of an employee referral program was included in the audit response. The employer requested that the case be reconsidered on the basis that its statement that recruitment was conducted through an employee referral program was a clerical error. BALCA reviewed the federal regulations and found that the PERM process does not “permit employer’s to make changes to applications after filing. The … program is designed to streamline the process and an open amendment process that freely allows changes to applications … is inconsistent with the goal.” However, BALCA went on to state that the regulations do “recognize the appropriateness of an opportunity to present … evidence that was generated to comply with the record retention requirements.” Unfortunately, BALCA determined that the appropriate time to provide this additional evidence is in the audit response. Since the employer failed to do so, BALCA reaffirmed the denial. It is critical that labor certifications are filed with accurate information. However, this case does give some support for the idea that explanations or clarifying information can be presented in an audit response.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed whether a laid-off U.S. worker was qualified for a position sponsored through an Application for Permanent Employment Certification. In Matter of Federal Home Loan Mortgage Corporation, the employer submitted a labor certification case for the position of “Financial Analyst – Senior.” The case was selected for audit, and the employer provided documentation showing why an employee who had been laid off by the employer was not qualified for the role. The description of the position provided in the ETA 9089 stated that it would involve the use of SAS programming and relational databases such as Structured Query Language. The Certifying Officer denied the case on the basis that the laid-off employee had the necessary years of experience in business applications and would “be able to acquire any additional job-specific knowledge during a reasonable period of on-the-job training.” In reviewing the case, BALCA referenced the regulations at 20 C.F.R. § 656.17(k)(1), which provide that an employer that is sponsoring a position for labor certification and has had a lay-off six months prior to the date that the case was filed must “notify and consider all potentially qualified laid off U.S. workers.” BALCA considered the resume of the laid-off U.S. worker and found that he had no experience with many of the programming and software tools that are used in the sponsored position. It also stated that the CO was incorrect in assuming that the laid-off U.S. worker’s experience with the employer would have necessarily included the use of these tools when there was no evidence in the worker’s resume to support this contention. Consequently, BALCA reversed the CO’s decision. The rules regarding the steps that must be taken to be eligible to file a labor certification when a lay-off has occurred are complex. Consequently, we advise employers to contact us if a lay-off occurs so that we can discuss how it will impact the immigration needs of employees.
On January 30, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision discussing on-campus recruitment as an additional recruitment step for purposes of labor certification. In Matter of Micron Technology, Inc., the employer submitted a labor certification case for the position of “Senior Design Verification Engineer.” The case was selected for audit. The Certifying Officer (“CO”) denied the case for a number of reasons, many of which were overturned after a request for reconsideration was filed. However, the CO maintained that the employer’s failure to provide “copies of pages of the notification issued or posted by the college’s or university’s placement office, naming the employer and the date it conducted interviews and / or participated in on-campus events” should result in a denial. In reviewing the case, BALCA referenced 20 C.F.R. §656.17(e)(1)(ii)(D), which states that on-campus recruitment “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.” BALCA determined that this section of the regulation used the word ‘can.’ By doing so, the methods of documenting on-campus recruitment stated in the regulation are a suggestion, not a requirement. Consequently, BALCA found that the employer can document on-campus recruitment through other methods “provided it provides adequate indication that the recruitment method was utilized, and the necessary information was provide to potential U.S. applicants.” This case establishes that employers can document their use of on-campus recruitment as an additional recruitment step through a variety of methods, as long as the employer can prove that the recruitment actually occurred and U.S. applicants were fairly apprised of the position.
BALCA Determines that the Advertising Content Requirements for Newspapers Does not Apply to the Additional Recruitment Steps
On February 11, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed whether the content requirements for newspaper advertisements that are completed as part of the mandatory recruitment steps in a labor certification case also apply to the additional recruitment steps that are chosen. The employer submitted a labor certification case for the position of ‘Financial Programmer.’ The case was selected for audit. After reviewing the audit response, the Certifying Officer (“CO”) denied the case on the basis that the employer’s posting on a job search website contained a travel requirement that was not enumerated in the ETA 9089. The employer argued that the CO’s reliance on 20 C.F.R. § 656.17(e) in this denial was misplaced because this provision only applies to advertisements that are placed in newspapers and professional journals. In considering the case, BALCA reviewed the language in 20 C.F.R. § 656.17(e) and found that its requirements apply to “advertisements placed in newspapers of general circulation or in professional journals.” Since a job search website is not within either of these categories, the federal regulations do not support the contention that these advertising requirements apply to job search websites. BALCA also determined that if the Employment and Training Administration (“ETA”) intended for these advertising requirements to apply to the additional recruitment steps, it would have included a statement to this effect in the regulations, like it had done with the requirements for the notice of filing. Finally, BALCA reviewed a previous decision called Matter of Credit Suisse Securities LLC, which found that policy considerations support the idea that all advertisements done through the PERM process must contain the necessary information to inform U.S. workers of the position. However, BALCA stated that it “does not have the authority to read into the regulations an additional requirement not stated therein. Only the ETA has the power to amend the regulations.” Based on this finding, the CO’s decision was overturned. This case provides information on the content requirements for the additional steps conducted as part of a labor certification case and reminds the Department of Labor that it is not permitted to add requirements that are not specifically stated in the regulations.
And you think your I-485 case has pending too long (with a current priority date) ? Try fourteen (14) years ! In a recent court decision, a Federal judge in Virginia ruled that a mandamus action could proceed against the USCIS for its failure to adjudicate an I-485 application filed in 1999. The Federal judge does not have the authority to require the USCIS to approve the case but, the judge can force the USCIS to make a decision. In a position consistent with its current policy of acting without regard to the law, the USCIS fought to have it declared that a Federal judge may not review any of its actions or in this case, inaction. Basically, the USCIS sought to argue that they answered to no one ! Nice to see a Federal Court tell them otherwise.