Several sources are reporting that Senators Grassley, Brown, and Schumer have reached a compromise that would eliminate the per country limitations for immigrant visas, create a special E3 visa for persons from Ireland, and require an annual DOL audit of all employers with more than 100 employees and 15% H-1b holders. It would also eliminate the ability to obtain LCA’s in 7 days. But, we caution, don’t get too excited or too upset just yet. As with all politically charged bills, a lot can change between now and the President taking the cap off of the pen and signing it into law. We will keep you updated as developments occur.
On March 23, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of World Agape Mission Church that discussed whether an employer’s name must be included in an advertisement listed by a private employment firm. The employer, World Agape Mission Church, had filed a PERM application for the position of Pastor (Associate) on April 18, 2008. On April 29th, the Certifying Officer (“CO”) issued an audit notification, which was responded to by the employer. After reviewing the information provided, the CO denied the application because the employer did not provide proof of publication of the job order from the state workforce and did not list the employer’s name in the recruitment conducted through a private employment firm. BALCA reviewed its early decision in Matter of A Cut Above Ceramic Tile and reiterated that “proof of publication of the job order containing the content of the job order” is not required supporting documentation. Consequently, BALCA stated that the first basis of denial was not valid. Next, BALCA turned to the issue of recruitment involving private employment firms. While 20 C.F.R. § 656.17(f) states that advertisements from newspapers of general circulation must include the name of the employer, this specific regulation does not apply to recruitment conducted through private employment firms. BALCA noted that if an employer’s name was listed as part of the recruitment conducted by a private employment firm, “the potential employee could bypass the private employment firm.” Thus, recruitment completed through private employment firms do not have to include the employer’s name. BALCA stated that this basis of denial was invalid. While this decision provides welcome guidance on recruitment involving private employment firms, employers should remain cognizant that the job opportunity advertised through an employment firm must be open to any U.S. worker to constitute a valid recruitment step.
As reported in this blog previously, President Obama’s administration recently expanded the number of STEM programs that make OPT available for 29 months. This expansion bypassed Congress and was issued without notice and comment or any other rulemaking procedure. Senator Grassley has called for an investigation into the STEM OPT program. He claims that the expanded program hurts US grads and undermines US security. Although his challenge based upon US security concerns is nothing more than fanning the flames of extremists, clearly a core constituency of the Sentor’s, his claim that the expanded program fails to provide protection of US workers has merit and needs careful consideration. If in fact, rulemaking procedures had been follwed, as dictated by the APA, this expansion could’ve been carefully considered by all stakeholders. It has become a consistent practice of this administration to issue new “rules” eg. the 2010 Neufeld memo changing the definition of an employer/employee in the H-1b context and the more subtle yet no less impactful change of the definition of specialized knowledge in the L-1b context. What is ironic is that Senator Grassley engineered the new rules in the H-1b and L-1b context and yet has the audacity to now complain about the failure to follow proper protocol. It appears that the proper protocol only needs to be followed when he disagrees with the rule being issued. Frankly, I think all of he new rules discussed above would be better rules if the proper procedures had been follwed. I may not like the ultimate result any better but, there is something to be said for careful consideration instead of dictatorial edict whether that dictator is a Senator or an Executive Administration official.
The American Immigration Lawyers Association (AILA) predicts the H-1b cap to be reached early next week based upon their tracking of burn rates and the historical trend of an increase in the rate of filings as the cap is close to being met. We will keep you updated as the USCIS provides information.
During this past month, members of the U.S. Senate have introduced a number of bills that would allow STEM graduates to more easily receive green cards once they are employed in a relevant field. On May 15, 2012, Senator John Cornyn (R-TX) presented Securing the Talent America Requires for the 21st Century (“STAR Act”). This bill would: (1) allocate 55,000 visas for eligible STEM graduates who have obtained a master’s or Ph.D from a qualifying U.S. research institution and have job offers in a related filed, (2) offset these visas by eliminating the Diversity Visa lottery program, and (3) allow dual immigrant intent for individuals admitted as students to pursue a STEM degree. Senators Lamar Alexander (R-TN) and Chris Coons (D-DE) also introduced a bill on May 15th. Sustaining our Most Advanced Researchers and Technology Jobs Act of 2012 (“SMART Act”) would permit students who enter the United States to obtain a master’s or doctorate degree in a STEM field to use a new visa called an F-4. Once these students graduate from their program, they will have a year to find a job in a STEM field in the United States. After obtaining employment, these students will be able to adjust their status to Legal Permanent Resident. Finally, on May 22nd, Senators Marco Rubio (R-FL), Chris Coons (D-DE), Jerry Moran (R-KA), and Mark Warner (D-VA) submitted the Startup Act 2.0. This legislation would create a new STEM visa to allow foreign students who graduate with a master’s or Ph.d in a STEM program from a U.S. institution to receive green cards. It would also create an entrepreneur’s visa for immigrants to launch businesses in the United States. While it remains to be seen whether these bills will be successful in this election year, the Hammond Law Group applauds these Senators for their efforts.
The USCIS has released the H-1b cap count for filings received through May 25th. The Master’s number has reached 17,500 and the regular count has reached 48,400. We are estimating a week to ten days remaining until the quota is exhausted. We will continue to update the count as information is made available.
On March 16, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Marlabs, Inc. In this case, the employer filed a labor certification application for a Senior Java Application Developer. On the ETA 9089, the employer stated that it engaged in three additional recruitment steps, including advertising through its employee referral program. When the case was audited, the employer provided a page from its employee manual that discussed the terms of the employee referral program as evidence that this form of recruitment was used. The case was denied because the employer “failed to provide dated copies of employer notices or memoranda advertising the program and specifying the incentives offered.” After engaging in an analysis of the statutory requirements and relevant case law discussing employee referral programs, BALCA upheld the denial of the case because “there was no documentation in the audit response, other than the dates listed on ETA 9089, that addressed whether the employee referral program was in effect during the recruitment effort.” While BALCA recognized that the ETA 9089 was used by the employer to demonstrate the dates the employer referral program was in effect, it stated that the ETA 9089 cannot be used as the only form of evidence to document the relevant dates that the employee referral program was advertized. When using an employee referral program, employers should be careful to ensure that they appropriately document the dates the employee referral program is advertised and the incentives involved.