The DOS has released the April Visa Bulletin and unfortunately, the movement of EB2 dates for Indian and Chinese nationals halted with dates remaining the same as the March bulletin. Historically, a month where dates remain constant indicates that the DOS may have enough demand to utilize all available immigrant visas for a fiscal year and it would not be surprising if the date stayed at May 1, 2010 or retrogressed. The EB3 category continued its all too familiar pattern of inching forward.
Read the latest BALCA decision and then openly weep for the state of our employment based immigration system. In this case, the DOL Certifying Officer denied a PERM case on the basis that the ad language stated “may require employer-reimbursed travel” instead of “some positions may require travel” and determined that US workers could be confused by such language and not be aware that travel may be required. I’m sorry but, if you are mis-led by that language, you do not deserve consideration for employment in any job. The fact that the Certifying Officer even thought there may be confusion is beyond comprehension. Fortunately, BALCA ruled in the employer’s favor and ordered the case to be certified but, the appeal took almost 2 years and the overall case has been pending for almost 4. Sadly, of the 3 government agencies most involved in business immigration cases, the DOL, in spite of decisions like this is still light years ahead of the USCIS and the US Consulates (DOS) in following the law without prejudice and in operating efficiently.
On February 27, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) determined that the job titles used in print advertisements for labor certification cases do not have to match the ones provided in the actual application if the occupational classification includes a broad range of job titles. In Matter of Target Point Media, LLC, the employer filed a labor certification application for the position of Business Development Specialist. As part of this application, it ran advertisements for a Business Development VP with two newspapers. After conducting an audit, the CO determined that this change violated the regulations regarding print advertisements. In its review, BALCA stated that there must be a “logical nexus’ between the advertisement and the position listed on the employer’s application. Since this position was considered under the occupational classification of Market Research Analyst, which includes a “broad range of job titles,” the nexus was established. Consequently, the job was “clearly open toU.S. workers” and the position was described “with sufficient specificity to apprise U.S. workers of the opportunity.” BALCA reversed the CO’s denial.
Recently, the DOL released stats for PERM cases. Of particular interest is that the denial/withdrawal rate has increased to over 25% and of the over 24,000 cases currently pending, over 6,000 are being audited. Processing times for cases with the exception of BALCA appeals remains under 1 yr which by historical standards is excellent.
A recent report issued by the Institute for the Study of Labor in Bonn, Germany compared H-1b employees to native workers in regards to age, salary, and education level. This study, called H-1bs: How do they stack up to US Born Workers, noted that the H-1b visa system is often criticized for harming opportunities for native workers and allowing employers to take advantage of H-1b employees. However, the study found that H-1b workers on average are younger and more highly educated than U.S. born workers. In addition, they earn a salary that is comparable, if not higher, than the amount earned by native workers. To reach these conclusions, the authors obtained data on individuals from USCIS for 2000 to 2010 through a Freedom of Information Act request. This data was compared to the information provided about U.S. born workers in the American Community Survey: 2009. The report confirms that H-1b workers come to the United States with an advanced level of education, earn high incomes, and participate meaningfully in the U.S. workforce.
The DOS recently published a final rule changing the way it would determine the validity dates it would issue for an L-1 visa. L visas will now be issued with validity periods based on the visa reciprocity schedule. The prior rule limited L visas to the petition validity period, as shown on the I-797 approval notice issued by the USCIS.
Don’t believe the rhetoric that is coming from USCIS officers and the corn fields of Iowa claiming that immigration officials are being too lenient and being pressured into issuing unwarranted approvals. The truth lies in the numbers. A recent report from the NFAP, provides facts (those are statements that are true and not inventions of one’s mind) about the denial and RFE rates experienced by employers trying to petiton for H-1b, L, and O workers over the past few years. While the White House advocates for an immigration policy that attracts and retains highly skilled professionals and entrepreneurs and the DHS issues press releases touting its efforts consistent with that policy, the rank and file USCIS officers are beating to a different drummer. The facts don’t lie, even if they don’t play well in the heartland.
Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions. At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7% prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates. It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS. The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of L-1b petitions.