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PERM stats

The DOL has released updated PERM stats which reveal some interesting tidbits. The number of PERM applications received this year over the same time period in FY 2014 is up over 25%. Of cases where a decision has been reached, less than 10% have been denied. Over 30% of cases are currently in audit review and almost 10% of cases are pending an appeal. Although it seems like everyone claims to have been filed under EB2, almost 50% of cases were filed under EB3 standards.

Confused by the Visa Bulletin ?

Ever wonder how the priority date cut-offs are established each month and been curious how the priority dates can fluctuate so drastically as if they are mere sailboats adrift in the wind ? You are not alone. Recently, a Federal Court of Appeals raised serious questions about Department of State procedures used to establish the dates. The Appellate Court closed their opinion by saying that it is not deciding at this point whether or not the Department of State is acting illegally; it is only saying that “the consequences of State’s current operations are quite consistent with [the Plaintiff’s] allegations that [the Department of State] has inadequately heeded [section] 203(e)(1)’s priority principle”. Further proceedings were ordered and this case is worth keeping an eye on.

AAO Provides Clarification on the Meaning of “Doing Business” for EB-1 Petitions

On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a decision in which it discussed the meaning of “doing business” for EB-1 petitions. In Matter of Leacheng International, Inc., the Petitioner filed an Immigrant Petition for Alien Worker in the classification of multinational manager or executive. To qualify for this classification, it must be established that a petitioner has been doing business for at least one year. Doing business is defined as the “regular, systematic, and continuous provision of goods and / or services by a firm, corporation, or other entity.” See 8 C.F.R. § 204.5(j)(2). The Petitioner is an affiliate of an entity based out of Hong Kong. Both organizations are owned by a Chinese parent company. The Petitioner was responsible for importing and selling the parent company’s products in the U.S. Starting in 2012, the Petitioner began “providing marketing, sales, and shipping services in the United States pursuant to a service agreement with its Hong Kong affiliate.” The case was initially denied on the basis that the evidence “does not indicate ‘doing business’ with independent corporations or entities’ for a full year preceding the filing of the petition, but rather ‘only demonstrate[s] the shipment of goods from the foreign company to the U.S. company.” In reviewing the case, the AAO determined that there was nothing in the regulations that requires that a “petitioner for a multinational manager or executive must provide goods or services to an unaffiliated third party.” Rather, a petitioner may prove that it is doing business “by demonstrating that it is providing goods and / or services in a regular, systematic, and continuous manner to related companies within its multinational organization.” In reviewing the evidence, the AAO instructed that the totality of the record should be reviewed and “the fact that a petitioner serves as an agent, representative, or liaison between a related foreign entity and its United States customers does not preclude a finding that it is doing business.” This case provides important information on what types of activities will qualify as “doing business” for purposes of an EB-1 filing.

April Visa Bulletin

The April Visa bulletin has been released by the Department of State and once again India EB2 and all other countries EB3 and the Philippines EB3 categories saw nice forward movement. Unfortunately, China EB3 saw retrogression.

H-4 EAD Rule Released

At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.

March Visa Bulletin released

The Department of State has released the March Visa Bulletin and several categories including EB2 India and most EB3 categories saw significant forward movement.

By |February 10th, 2015|Green Cards|0 Comments|

DOL releases program statistics

The DOL has released data on all of its FY 2013 programs including, PERM and prevailing wage determinations (PWD).

BALCA Discusses What Terms and Conditions of Employment Must be Listed in Recruitment Materials

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.

February Visa Bulletin

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.

By |January 12th, 2015|Green Cards|0 Comments|

January Visa Bulletin released

The DOS has released the January Visa Bulletin and unless you are PRC EB2 or India, you saw significant gains across the board. The EB3 category for the Philippines and all other countries saw jumps of 7 months.

By |December 10th, 2014|Green Cards|0 Comments|