The DOS released the July Visa bulletin today and it contained good news for India and PRC EB2 holders as the dates jumped forward almost 5 months, to March 8,2007. Other categories and countries of chargeability were not as lucky as dates continue to move forward but, at a snail-like pace.
On May 25, 2011, The Bureau of Alien Labor Certification Appeals (BALCA), where most PERM cases go to die, finally issued a great decision that clarified a grey area! See Horizon Computer Services, Inc. (BALCA No. 2010-PER-00746).
DOL recently began denying cases in which recruitment began before the validity of the PWD. DOL’s reading of the regulations conflicted with the way many attorneys interpreted the regulations at 20 CFR Section 656.40(c) and a handful of cases went up on appeal for this issue. DOL argued that ALL recruitment must occur within the validity of the PWD. Many practitioners argued that only SOME of the recruitment must occur within the validity of the PWD.
BALCA sided with us and clarified that as long as SOME of the recruitment occurs during the validity of the prevailing wage determination, the recruitment is in compliance with 20 CFR section 656.40(c). Not ALL of the recruitment needs to occur within the validity of the prevailing wage determination. Some recruitment can occur before the validity.
We look forward to BALCA remanding other similar cases that are also on appeal, back to the DOL for approval!
This week, the House took up the appropriations bill for the Department of Homeland Security and several immigration measures were added however, none were substantive business measures. Historically, appropriations bills have provided opportunities to attach substantive pro-business immigration measures but, none were even considered by the House. For a review of the amendments considered and approved check out the details at Immigration Impact.
Check out the new HLG web-site. We are excited about this new site which provides up to date information about our firm as well as numerous resources which we believe you may find useful including: a log-in to check the status of your pending case, step by step guides, checklists, an event calendar and various other items of interest. And, where else can you find a site that contains quotes from such a diverse group as Bono, Bob Marley, Mother Theresa, and FDR.
Kudos to Senator Grassley, his puppets at USCIS and other like-minded policy makers that have consistently created or applied policies that restrict and burden the use of the H-1b visa. Oh how quickly our brilliant politicians and policymakers forget that Intel, Google, Yahoo, and eBay were all founded by immigrants in an era with LESS restrictions on the H-1b visa and LESS restrictions on the L-1b visa and LESS of a wait for a green card. USA Today reports the story of SnapDeal a high tech company whose founder was previously in the US on an H-1b visa but decided to start his new company in India instead of the US due to H-1b visa restrictions. The company has grown to a size of over 400 employees. But, hey we don’t need those jobs here in the US. It’s time for Washington DC to wake up and recognize that there are economic consequences to immigration policy and the US economy is being negatively impacted by the current culture of NO !
The U.S. District Court for the District of Columbia recently issued an opinion which states USCIS is within its rights (not a violation of the Administrative Procedures Act) to deny applications for adjustment of status based on a pending I-140 Petition, even after the I-485 petitions have been pending for at least 180 days and portability has been requested.
Most of us are familiar with AC21 portability which gives aliens the ability to move or “port” their entire green card case to another employer, provided they have an I-485 that has been pending for at least 180 days and they are moving to a position that is the “same or similar” to the position listed on their approved labor certification. In Ravulapalli v. Napolitano, the Plaintiffs ported their permanent residence cases to a new employer while the I-140 and the I-485s were pending. The I-140 employer withdrew the I-140 Petition and based on the withdrawal, USCIS denied the I-485 applications even after portability. The Court determined that when portability is requested prior to I-140 approval, USCIS is within their right to review the I-140 for whether it was approvable at the time of filing. If it was not approvable at the time of filing, the I-140 and I-485s can both be denied, even after portability to a “same or similar” position.
It is our continued recommendation that clients do not attempt portability based on a pending I-140 Petition. We recommend using AC21 portability only when an I-140 has been approved and I-485 applications have been pending for at least 180 days. Please contact the Hammond Law Group if you have any questions about porting your pending case to a new employer.
In a recent decision, BALCA, once again applied common sense and reason which, has not always been the case but certainly, seems to be a recent trend. In the most recent case, BALCA declared that if a PWD contains 2 wages, that the employer must proceed with the higher wage in its PERM case.