In a recent decisionby the Board of Alien Labor Certification Appeals (BALCA), the Court rejected an employers choice to publish the required newspaper ads in the Washington Examiner instead of the Washington Post. The BALCA decision makes clear that the newspaper chosen must be THE most appropriate newspaper in the area. The inference is clear, there is only one (1) correct choice in each metro area. Presumably that means the newspaper with the largest circulation. Frankly, I think this decision goes in the category of “no duh!” Who could possibly argue that a suburban/community press type newspaper was an appropriate choice instead of the areas largest most well known newspaper ? Obviously not an experienced immigration attorney, as the employer went unrepresented in the appeal. Now it came to me, the DOL has been making the same argument by rejecting additional newspaper ads used to support the extra 3 of 10 recruitment activities required for professional positions if they are placed in the same newspaper as the required Sunday ads. Using the same reasoning expressed by BALCA calls into question whether local ads run in suburban/community press newspapers are truly acceptable. BALCA cited with approval a statement from the DOL accompanying the final rule which stated ” in order for the employer’s job opening to receive appropriate exposure, the proposed regulation requires that the mandatory advertisements appear in the newspaper of general circulation most appropriate to the occupation and the workers most likely to apply for the job opportunity in the area of intended employment. For example, in a relatively large metropolitan area such as Philadelphia, Pennsylvania or Washington, DC, it would not be appropriate to place an advertisement for a computer professional in a suburban newspaper of general circulation since workers interested in professional jobs consult the metropolitan newspapers in the area of intended employment with the largest circulation rather than the suburban newspapers of general circulation.” I suggest that in light of this recent BALCA decision, that the DOL go back to the regulation and revise its FAQ. The prohibition against counting the same activity twice is obvious but, the logic behind not allowing a week day ad ran in the same major newspaper as the required Sunday ads is not supported by any clear reasoning. For now, I recommend choosing the largest newspaper in your area for the required Sunday ads and not using local newspapers for one of the additional activities. Stay tuned for more changes to PERM as, tongue firmly in cheek, we continue to do all to protect the U.S. worker !
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in Matter of Alfonso’s Mexican Food. This case discusses the verification of sponsorship in labor certifications. The employer filed a labor certification for the position of “Cook” on July 23, 2010. The application was submitted through the mail and included an original signature by the company owner in the Employer Declaration section. The Certifying Officer (“CO”) denied the application on October 28, 2010 because it was unable to confirm that the employer intended to sponsor the foreign worker. The CO noted that it had made several phone calls to the employer and was unable to make contact. BALCA stated that the CO is permitted to “conduct checks to ensure that the employer is aware that the application was filed on its behalf,” including making phone calls. However, “verification of sponsorship by telephone is not a regulatory requirement, but rather a tool that the CO has utilized as part of its preliminary screening.” Since the application included an original signature in the Employer Declaration and was mailed, it complied with the attestation requirements established by the regulations. This case serves as an important reminder to employers that they must diligently check email addresses and phone numbers that are provided to the Department of Labor and U.S. Citizenship & Immigration Services so that requests receive timely replies.
According to recent statistics released by the DOL, there is a greater scrutiny of PERM applications. Over 40% of all applications currently pending are either under audit or supervised recruitment. Of the over 40,000 cases with decisions this fiscal year (10-1-2011 to date) over 15% have been denied.
Earlier this week, Computerworld reported that there may be some forward movement in STEM legislation in the House. However, before we get too excited, recent history (HR 3012) tells us that a Smith-Lofgren STEM bill even if passed in the House unanimously with cake and baloons can’t get past the long-arm of Senator Grassley and actually become law without the addition of significant restrictionist provisions with the potential to kill the bill. Within the last month, Senator Grassley went on record stating his concerns about the immigration benefits provided to STEM grads under the current law. We will keep you updated as developments occur.
BALCA States that Certifying Officer Cannot Replace His Judgment for the Employer’s in Matter of JP Morgan Chase & Co
On July 16, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of JP Morgan Chase & Co. In this case, JP Morgan Chase submitted an Application for Permanent Employment Certification that was to be considered under supervised recruitment. After engaging in the recruitment activities specified by the Certifying Officer (“CO”), the CO denied the application because it determined that JP Morgan Chase had rejected U.S. workers for non-lawful job-related reasons. This application required knowledge in Excel or Access and proficiency in Lotus Notes and SharePoint. The CO argued that two of the applicants had a “combination of skills that meet the position’s minimum requirements and could acquire Access and SharePoint skills while on the job.” JP Morgan Chase argued that “it was not feasible, in the financial industry, to conduct on the job training” and that it normally ensured that “applicants are able to perform all of the duties . . . at the time of hire.” After reviewing several previous cases, BALCA stated that the “CO cannot dismiss an employer’s stated job requirements in the absence of a determination that the job requirements are unduly restrictive” or “dismiss the employer’s stated requirements and substitute his judgment for the employer’s.” This important decision should help employers successfully argue that CO’s must honor their determination about whether an applicant is qualified for a particular position.
For several years now, persons with H-1b and L-1 approvals who have sought visa stamping from the U.S. Consulates in India have faced the re-adjudication of petitions already approved by the USCIS. Although this practice has no legal basis, the doctrine of Consular non-reviewability has prevented recourse in U.S. Federal Courts and this Congress and Administration has refused to take corrective action. Now, it is being reported that the U.S. Consulates are branching out and re-adjudicating immigrant petition cases and reviewing I-140 cases already approved. What is next ? PERM cases ? A fellow immigration attorney, Roger Algase, has recently posted on this topic and his blog post is worth the read. At some point, the legal immigration community must take a stand and say enough is enough and demand that the rule of law and principle of due process return. But, maybe not just yet. Let’s let them keep treading on us for a bit longer.
Earlier this week, Senator Grassley publicly announced that he had released his hold on HR 3012. If you recall, HR 3012 was a bill that had passed the House by a margin of 389-15 and essentially eliminated decades of national origin discrimination by eliminating the per country limits applied to the distribution of immigrant visas (green cards). Unfortunately, when HR 3012 reached the Senate for consideration, Senator Grassley singularly put a hold on it, much as a petulant child will threaten to take his ball and go home if everyone else refuses to play by his rules. As oft is the case in politics, if you have an unpopular provision that stands no chance of success standing on its own merits, you hold a popular piece of legislation hostage until everyone caves. As a strategic ploy, Machiavelli would be proud and Senator Grassley finally got his way and succeeded in attaching additional rules to the H-1b program. (As an aside, I agree with Senator Grassley that the H-1b program does need review and reforms but, unlike this approach, I’d like that review to be done in the open, with a full public hearing and any proposed changes accepted or rejected on their merits.) The amendment that I think will most adversely impact employers is not the annual review of employers that have more than 100 employees and have at least 15% H-1b workers, or the lack of any judicial review, or even the change which allows the DOL to investigate an employer for possible LCA violations without a complaint but, it is the change that allows the DOL the unfettered ability to delay the issuance of an LCA for an indeterminate amount of time. Under the present system, the DOL must certify an LCA within 7 days unless it is “incomplete”. This time limit insures that employers can quickly file an H-1b visa petition. This quick turnaround is particularly important given the small number of H-1b visas available each year under the quota and in circumstances where H-1b workers are transferring from one U.S. employer to another. Under the Grassley amendment, there would be no such 7 day requirement and an investigation and delay in the issuance of an LCA can be initiated by the DOL under the vague rubric of ” clear indicators of fraud, misrepresentation of material fact, or obviously inaccurate”. If fraud hadn’t been so bastardized by the USCIS previously and on the record, then maybe this wouldn’t be so alarming but, fraud has been defined to include such factors as: an address change, having less than 25 employees, less than $10 million in revenues, and a web-site under construction, among others. When a U.S. employer chooses to hire an H-1b worker and expend the $5,000 to $10,000 in attorney and government fees required, it is looking for certainty in timing and adjudication. Over the past 2 years, the certainty associated with adjudication has been removed as the USCIS and the DOS by internal memo and policy have changed the rules where today, you aren’t even certain that a software engineer with a US Master’s degree is going to given an H-1b visa and now, if this amendment takes effect, the timing of the process will give way to uncertainty. Senator Grassley, keep your investigations and annual reviews because as an attorney, I applaud extra regulatory requirements and burdensome reviews that require my clients to retain me and pay me copious amounts of money but, initiate the investigations after the certification of the LCA’s. You can always revoke the LCA’s and impose large fines if you truly find fraud. To do otherwise, will cause employers, often smaller ones, to lose business opportunities and will encourage the outsourcing of projects abroad where the start of the project need not be delayed until the completion of an LCA investigation and the filing of an H-1b visa. The vast majority of U.S. employers want to play by the rules but, in turn, they are seeking certainty and assurances that the government agencies will also play by the rules. With this latest amendment, we will now have neither.
The DOS has released the August 2012 Visa Bulletin As expected, the EB2 category remained unchanged. Unfortunately, the EB3 category slowed to a virtual crawl. The Philippines EB3 category only moved forward 1 week. It is expected that the September bulletin will contain similar bad news however, we expect the October bulletin to bring us smiles again !
No complaining about the H-1b quota or retrogression or RFE’s or even Senator Grassley today ! No, today is a day to celebrate and give pause to the opportunities for freedom, liberty and the pursuit of our dreams that this country provides both its citizens born here as well as those that come to its shores. We wanted to share with you a story that ran in our local newspaper yesterday about Peter Le. Peter is a former attorney at HLG and a current friend and I think you will enjoy his story. Happy 4th of July !
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision on a case involving supervised recruitment. In Matter of JP Morgan Chase & Co, the employer was alerted that its labor certification application had been selected for supervised recruitment. The Certifying Officer (“CO”) sent the employer recruitment report instructions that noted that the report must “state the names, addresses, and provide resumes.” When the employer responded, it provided the resumes and stated that the resumes included the name and address of each applicant. After reviewing the regulations that are specific to supervised recruitment, the CO denied the application because it did not state the addresses of the U.S. workers who applied for the position. While the employer argued that the addresses were provided on each applicant’s resume, BALCA determined that the regulations require that the employer “state the addresses of applicants, not merely  provide them.” It reached this conclusion after stating that each CO is expected to review a large number of PERM applications each year and must be able to quickly find the addresses of applicants. It also noted that the employer was “on clear notice both from the regulation itself and a specific notice issued by the CO that it would have to state the addresses of applicants.” While this decision clearly does not provide much leeway in providing the information requested in supervised recruitment, it is a valuable decision that alerts employers to the strict standard that will be used in reviewing supervised recruitment cases. In addition, the Department of Labor alerted immigration attorneys at the most recent AILA conference that it plans to continue to increase the amount of supervised recruitment conducted. Consequently, this case is especially relevant as more employers are forced to engage in supervised recruitment.