Yesterday, USA Today published excerpts of the Presidents Immigration plan and unfortunately, the President’s plan does not include any relief for persons legally pursuing immigrant status but delayed due to retrogression. Instead, his plan puts persons here without status, illegally or undocumented (choose your term) in many cases ahead of persons who are already in the EB2 and EB3 lines. This should come as no surprise to the business community who employ internatioanl workers as this adminsitration has been consistent in its promotion of a “culture of no !” The bi-partisan efforts in the Senate offer much better hope for legal immigration relief.
Think immigration reform is going to be easy or that the inclusion of pro-business changes such as retrogression relief, increased H-1’s, and better treatment of high skilled workers is a given ? Think again. Opposition is quickly growing as evidenced by the piece ran by the NY times this weekend. As with most political issues, facts are irrelevant.
Recently, the DOL released performance data on PERM filings and processing in the 1st Q of FY 2013. Several interesting stats were provided. Over 50% of all new filings are for computer occupations. Over 11% of cases processed were denied. Almost 40% of cases in process are under audit review. Almost 50% of cases filed require a Master’s degree or higher.
Recently, the DOS released the March Visa Bulletin and the forward movement was similar to recent months with world-wide EB3 moving ahead 6 weeks, India EB2 seeing no movement, and the Philippines EB3 category moving ahead only 1 week. The DOS also provided its predictions for future movement and reaffirmed that India EB2 would see no forward movement during the balance of this fiscal year and, may even retrogress further. They also predicted that the EB3 Philippines category would continue to see limited movement of only up to a week each month. The DOS also released the data that it uses to set the monthly priority dates.
On January 22, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of General Electric Co. (GE Healthcare). In this case, BALCA interpreted the application of alternative minimum requirements on the Form ETA-9089. The petitioner submitted an application for permanent employment certification for the position of “MR Clinical Development Leader.” The case was denied because the Certifying Officer (“CO”) determined that the alternative requirements for the job were not substantially equivalent to the primary requirements. The primary requirements were a Bachelor’s degree in Radiology, Biomedical [Engineering], Chemistry, or Medical Tech and sixty months of progressively responsible post-bachelor’s experience including experience with MR equipment, product, and / or application development. The alternative requirements noted that the “employer accepts a suitable combination of education, training, or experience as equivalent to its primary requirement of a bachelor’s degree.” The CO denied the application on the basis that the alternative minimum education requirements also served as alternative requirements for experience. BALCA overturned the decision and noted that the application “clearly indicates that all applicants for employment are required to have a minimum of sixty months of progressively responsible post-bachelor’s experience, regardless of whether the applicant possesses the required bachelor’s degree or satisfies the alterative education equivalent.” This decision confirms that the Department of Labor must closely read the requirements for a position and ensure that it interprets the alternative requirements as only applying to the experience or education specified.
In a speech yesterday, President Obama outlined his immigration reform plan and later the White House released a fact sheet on his proposal. Although short on specifics, as policy speeches normally are, there was clearly cause for optimism from the business community and the international workers it employs.