On April 24, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) discussed whether or not advertisements in one newspaper could count as multiple recruitment steps. In Matter of Delta Search Labs, Inc., the employer sponsored the position of “marketing manager.” As part of its recruitment effort, it placed two Sunday advertisements in the Boston Globe. It also listed the position opening in the Boston Globe during the week. The employer argued that the advertisement placed during the week should count as recruitment in a local newspaper. The case was selected for audit and the Certifying Officer (“CO”) denied it on the basis that the employer had replicated a previously used recruitment step through placing a weekday advertisement in the same newspaper that the mandatory Sunday advertisements ran. The employer requested that the CO’s decision be reconsidered and submitted substantial evidence that showed that the weekday editions of the Boston Globe reaches a different population than the Sunday edition and has higher circulation numbers than any of its local competitors. Consequently, the employer argued that a weekday advertisement in the Boston Globe was the most appropriate medium to attract able, willing, and qualified candidates. In reviewing the case, BALCA stated that the Office of Foreign Labor Certification’s FAQ’s on PERM do not “address the issue of whether one publication could, based on its daily and weekend circulation figures, serve as both a local and general circulation publication.” Furthermore, BALCA also found that the regulations “do not specifically prohibit an employer from using the same newspaper as both a newspaper of general circulation and a local or ethnic newspaper, provided the newspaper satisfies both categories.” Consequently, the CO’s decision was reversed. While this case provides support for the idea that a newspaper could appropriately be used as a local newspaper and as a newspaper of general circulation, BALCA found support to reverse this decision in the fact that the CO did not make a determination about whether the Boston Globe could count as a local newspaper and a newspaper of general circulation. Employers who are considering using advertisements in one newspaper to fulfill the mandatory recruitment steps and as a local newspaper must carefully document why they believe that the newspaper meets both criteria.
Senator Sessions (R-Ala) a long-time and outspoken opponent of the H-1b visa and any increase in the H-1b quota or an increase in legal immigration, hosted a policy discussion last week to denounce any increase in the H-1b cap. The premise of the discussion was that there were plenty of unemployed US workers with STEM degrees who were being bypassed for cheaper H-1b visa holders. Check out the summary of the arguments being made.
Earlier this week, the Department of Homeland Security published the proposed rule which among things would allow certain H-4 holders to obtain EAD cards. H-4 holders would be permitted to file for EAD cards if 1 of 2 conditions are met by their H-1b spouse:
1. Is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
2. Is eligible for an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit under certain scenarios.
The proposed rule also covers other topics. Comments to this proposed rule are due by July 11th and our firm, on behalf of our clients, will be submitted official comments. You may also submit electronic comments on this proposed rule.
The Department of State has released the June Visa Bulletin and it contains a mix of news. The bad news is that EB3 for Mexico and all other countries retrogressed by 18 months to April of 2011. Retrogression in this category was expected but, many of us thought it would not occur until July or August. It is expected to be temporary with the dates jumping forward again in the new fiscal year i.e. October. The good news was that the Philippine EB3 category entered 2008 and many people believe it will continue steady advancement due to a decline in EB3 RN filings in 2008 and 2009.
The DHS issued a press release yesterday announcing a new proposed rule which would allow certain H-4 holders to obtain an EAD card. In essence, the proposed rule will allow H-4 spouses to be issued EAD cards when the principal H-1 holder has an I-140 approved or is 7th year extension eligible under AC21. The rule is not in effect now but, will go through the formal rule-making process which can often take many months. We will update you after the proposed rule is published.
USCIS recently released a 48 page California Service Center (CSC) L-1B denial template in response to a Freedom of Information Act (FOIA) request from the American Immigration Lawyers Association (AILA). The 48 denial template covers every conceivable way to deny an L-1B petition, whether or not supported by law, and even includes the kitchen sink. Although a few of the pages do in fact cite to the immigration regulations, the vast majority of the template is cookie cutter, cut and paste and insert here. This includes guidance to the adjudicator to [Insert name of petitioner] and [Insert CBP analysis of why petitioner/beneficiary failed to establish eligibility]. One of the many problems with this type of large template is that too much cut and paste and [insert here] leads to laziness, intended or not, on the part of the adjudicator. Ultimately, what we have seen in practice is that even after a comprehensive review of the denial, we are unable to determine exactly why the petition was denied. Which makes it tough to draft a motion to reconsider or motion to reopen. Other times we find that the denial includes the wrong petitioner or beneficiary or discusses facts not specific to the particular case that was denied. While USCIS states that such a template is needed for consistency of its decisions, we know that in real life, no two petitions are the same and thus, no two decisions should be the same.
Recently, the DOL released data on PERM applications processed in the 2nd Q of FY 2014 which ended March 31, 2014. Approximately 10% of applications filed are being denied and almost 30% of applications filed are currently under audit review. Interestingly, the number of new applications filed has dropped by over 10% from FY 2013.
On April 15, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Celmac Technology Services LLC. In this case, BALCA relied on the American Immigration Lawyer’s Association’s (“AILA”) notes from an April 11, 2013 meeting with the Office of Foreign Labor Certification (“OFLC”) National Stakeholders’ Quarterly Meeting to find that an employee referral program was appropriately used as an additional recruitment step in a labor certification case. In this case, the Certifying Officer (“CO”) issued a denial based on the fact that it found that the employee referral program that the employer used was invalid. It reached this decision because the employer had a small number of employees and relied heavily on foreign workers in its information technology business. Consequently, the CO found that the employee referral program was “not a recruitment method most likely to bring response from available U.S. workers.” The case was appealed and the DOL did not submit an argument in response to BALCA’s Notice of Docketing. In considering the case, BALCA reviewed statements made by the OFLC in its meeting with AILA. At this meeting, AILA questioned the “validity of PERM denials based on the use of an [employee referral program] where the employer was deemed too small (anywhere from 5 to 50 employees).” In response, the OFLC stated that “those denials were issued in error, and have been reversed.” Since the DOL confirmed to AILA that these denials were erroneous and the DOL did not make any argument in support of CO’s position, BALCA overturned the decision. This case provides support for the idea that smaller employers can use an employee referral program as an acceptable additional recruitment step in a labor certification case. However, the Hammond Law Group suggests that employers only use these programs as an additional fourth recruitment step due to their inconsistent treatment by the DOL.
Mike Hammond will be a speaker at a webinar being hosted by TechServe Alliance focusing on issues impacting IT and Engineering Staffing cos.