The Department of State has released the March Visa Bulletin and several categories including EB2 India and most EB3 categories saw significant forward movement.
At the end of 2014, the Board of Alien Labor Certification Appeals (“BALCA”) considered what employee benefits might be considered a “term and condition” of employment that should be listed in an advertisement that is placed as part of a recruitment effort. In Matter of Needham-Betz Thoroughbreds, Inc., the employer submitted a labor certification for the position of “Farm Manager.” The case was audited and the employer explained in the audit response that the employee was given the option to live rent-free on-site at the job location. The DOL denied the case on the basis that the recruitment that the employer conducted failed to inform potential applicants of the opportunity to live at the job site for free. Under the PERM regulations, advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL determined that the chance to live rent-free at the job site was a term and condition of employment that U.S. workers should have been apprised of. The employer appealed the denial. BALCA reviewed contradictory case law and found that free housing was a term and condition of employment that should have been listed in the recruitment. Specifically, BALCA stated that “the benefit of free housing is not a standard benefit attached to a job opportunity. Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days.” Through this statement, BALCA recognized that health insurance and vacation days are not benefits that must be listed in advertisements that are conducted as part of a recruitment effort. However, more unusual benefits, like free housing, should be stated. This case provides important information about the types of benefits that an employer must list in the recruitment it conducts for labor certification cases.
The February Visa Bulletin has been released by the Department of State and EB3 worldwide and Philippines saw rapid advancement again. India EB2 also moved for the first time in several months. The bulletin contained predictions about continued forward movement in EB3 categories but, indicated that “corrective” action aka retrogression may be coming.
AAO Determines that Beneficiary Cannot Use Experience Gained with the Petitioner to Qualify for a Sponsored Role
In an unpublished decision, the Administrative Appeals Office (“AAO”) considered whether the Beneficiary of a filed I-140 Immigrant Petition for Alien Worker could use experience gained at the sponsoring employer to demonstrate that he met the requirements of the role. In this case, the sponsoring employer filed a labor certification for the position of repairman and stated that this position required two years of experience. The employer also listed in the labor certification that the Beneficiary had over two years of experience as a repairman at a prior employer and close to six years of experience with the sponsoring employer. When the I-140 was filed, the employer only provided documentation demonstrating the experience that the Beneficiary obtained with it. The case was denied. In filing this appeal, the sponsoring employer argued that USCIS should “be focusing on whether the beneficiary was qualified for the position offered before the priority date . . . rather than whether the beneficiary was qualified before being hired by the Petitioner.” In denying the appeal, the AAO stated that the employer was attempting to qualify the Beneficiary through the experience he gained while working for it. However, since the Beneficiary’s experience with the sponsoring employer was substantially comparable to the position offered, this experience could not be used to establish that the Beneficiary had the necessary qualifications for the role. While there are provisions in the law that allow employers to use experience that a Beneficiary obtained while working for a sponsoring employer, they involve specific requirements that the employer and Beneficiary must meet in order to be successful. The Hammond Law Group is always happy to discuss these types of cases to determine whether it is feasible to use experience gained at a sponsoring employer in the greencard context.
The Department of State has released the December Visa Bulletin and there were no surprises. EB3 for “all other countries”, China, and the Philippines moved forward another 5 months while all other categories held steady or moved at a snails pace. Retrogression relief is badly needed and with the newly elected Senate, it is not likely to come without Presidential action.
United States Citizenship and Immigration Service (USCIS) has issued a procurement request for over 34 million work permits and green cards. This would be well above their normal levels. This has caused Republicans to speculate that President Obama is readying a sprawling executive order to drastically change the immigration laws.
Don’t hold your breath. USCIS has made a statement that asking contractors to prepare for contingencies is not unusual and that similar provisions are built into other contract bids the agency has made. “Solicitations of this nature are frequent practice for all USCIS contracts and allow the agency to be prepared for fluctuations in the number of immigration applications received, which can arise for any number of reasons,” USCIS spokesman Chris Bently said in a statement. The government typically uses measures like this to keep costs down in case of unforeseen circumstances.
So, while it is a good thing that USCIS is preparing to issue more work permits and green cards than normal, this probably shouldn’t be taken as a sign that sweeping immigration reform is right around the corner.
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.