The USCIS has officially announced that the H-1b cap for FY 2015 has been reached and that they received a significant number of petitions for both the US masters quota and the regular quota. They did not announce when the lottery would be held or when receipts and returns should be expected but, if past history is any indication, the process of receipts and returns will take several weeks.
The H-1b cap filing season officially opens today and the USCIS once again expects a lottery with the end result being that literally tens of 1000’s of professionals, some of them holding US graduate degrees will be rejected and told to go home ! As this unfolds, tech leaders from the Silicon Valley have made a push in Washington to pass immigration reform emphasing the job creation that is a direct result of H-1b workers.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision discussing errors made in labor certifications. In Matter of APT –Advanced Polymer Technology, the employer sponsored the position of R&D Manager/ Chemist for labor certification and stated that it conducted recruitment through an employee referral program, a job search website, and the employer’s website. The case was selected for audit and the employer submitted proof that it had conducted recruitment through a job search website, its website, and on-campus recruitment. The audit response did not address the discrepancy between the evidence of on-campus recruitment provided in the audit response and the employee referral program that was listed in the ETA 9089. The case was denied by the Certifying Officer (“CO”) on the basis that no evidence of an employee referral program was included in the audit response. The employer requested that the case be reconsidered on the basis that its statement that recruitment was conducted through an employee referral program was a clerical error. BALCA reviewed the federal regulations and found that the PERM process does not “permit employer’s to make changes to applications after filing. The … program is designed to streamline the process and an open amendment process that freely allows changes to applications … is inconsistent with the goal.” However, BALCA went on to state that the regulations do “recognize the appropriateness of an opportunity to present … evidence that was generated to comply with the record retention requirements.” Unfortunately, BALCA determined that the appropriate time to provide this additional evidence is in the audit response. Since the employer failed to do so, BALCA reaffirmed the denial. It is critical that labor certifications are filed with accurate information. However, this case does give some support for the idea that explanations or clarifying information can be presented in an audit response.
The H-1b cap season is in full swing with filings accepted starting Tues. April 1st. The USCIS has set up the link to it’s H-1b FY2015 page which will provide updates periodically. The USCIS has also issued a press release reminding people that cases received during the first 5 business days will be considered as part of the lottery. Given that the DOL is taking seven days to issue a certified Labor Condition Application (LCA) and that a certified LCA is a pre-condition to filing an H-1b case, tomorrow will be the absolute last day in which an H-1b cap case can be started and be given any hope of being considered in the lottery. Some people are predicting as many as 175,000 cases may be received in the 1st 5 days this year. The USCIS also advised that the clock on premium processing cases will begin no later than April 28, 2014. Good luck in the lottery and may the odds be ever in your favor !
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed whether a laid-off U.S. worker was qualified for a position sponsored through an Application for Permanent Employment Certification. In Matter of Federal Home Loan Mortgage Corporation, the employer submitted a labor certification case for the position of “Financial Analyst – Senior.” The case was selected for audit, and the employer provided documentation showing why an employee who had been laid off by the employer was not qualified for the role. The description of the position provided in the ETA 9089 stated that it would involve the use of SAS programming and relational databases such as Structured Query Language. The Certifying Officer denied the case on the basis that the laid-off employee had the necessary years of experience in business applications and would “be able to acquire any additional job-specific knowledge during a reasonable period of on-the-job training.” In reviewing the case, BALCA referenced the regulations at 20 C.F.R. § 656.17(k)(1), which provide that an employer that is sponsoring a position for labor certification and has had a lay-off six months prior to the date that the case was filed must “notify and consider all potentially qualified laid off U.S. workers.” BALCA considered the resume of the laid-off U.S. worker and found that he had no experience with many of the programming and software tools that are used in the sponsored position. It also stated that the CO was incorrect in assuming that the laid-off U.S. worker’s experience with the employer would have necessarily included the use of these tools when there was no evidence in the worker’s resume to support this contention. Consequently, BALCA reversed the CO’s decision. The rules regarding the steps that must be taken to be eligible to file a labor certification when a lay-off has occurred are complex. Consequently, we advise employers to contact us if a lay-off occurs so that we can discuss how it will impact the immigration needs of employees.
Hammond Law Group is pleased to announce that Lisa Galvan has joined the firm as a Senior Associate. Lisa will practice in the area of Corporate Immigration and will devote a significant amount of her time working with employers in the staffing industry. Lisa is a graduate of Baldwin Wallace College and the Cleveland
Marshall College of Law. She has been practicing business immigration law
for over fifteen years. Lisa has spoken and published in the areas of
Form I-9 and E-Verify compliance and Worksite Enforcement investigations.
Pursuant to a Freedom of Information Act (FOIA) request, the USCIS last week released data regarding the adjudication of L-1 petitions. This data reveals that the denial rate of L-1 cases rose over 10% from FY 2012 to FY 2013 and in FY 2013, an astounding 35% of all L-1 petitions filed were denied. This data covers all sectors of employment from manufacturing to IT. Anecdotal evidence from attorneys that handle L cases for manufacturing companies, reveal an almost 100% rate of approval while those handling IT cases report a denial rate exceeding 50% and some even claim to be seeing a rate of denial as high as 75%. The data produced from the USCIS reveals an RFE rate of over 47%. In FY 2013, the USCIS approved approximately 12,000 petitions. Contrast this to FY 2005 during which the USCIS approved over 40,000 petitions. The practical result is that many IT projects which would be completed in the US employing a mix of L-1 and US workers and generating tax revenues, consumer spending, etc are now being completed overseas with no benefit to any US worker or the US economy. Instead of opening our arms to entrepreneurs and innovators and welcoming all jobs that benefit the US economy, our immigration policy, not dictated by Congress but, rather dictated by the policy desires of a few is most assuredly a closed door policy.
On January 30, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision discussing on-campus recruitment as an additional recruitment step for purposes of labor certification. In Matter of Micron Technology, Inc., the employer submitted a labor certification case for the position of “Senior Design Verification Engineer.” The case was selected for audit. The Certifying Officer (“CO”) denied the case for a number of reasons, many of which were overturned after a request for reconsideration was filed. However, the CO maintained that the employer’s failure to provide “copies of pages of the notification issued or posted by the college’s or university’s placement office, naming the employer and the date it conducted interviews and / or participated in on-campus events” should result in a denial. In reviewing the case, BALCA referenced 20 C.F.R. §656.17(e)(1)(ii)(D), which states that on-campus recruitment “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office naming the employer and the date it conducted interviews for employment in the occupation.” BALCA determined that this section of the regulation used the word ‘can.’ By doing so, the methods of documenting on-campus recruitment stated in the regulation are a suggestion, not a requirement. Consequently, BALCA found that the employer can document on-campus recruitment through other methods “provided it provides adequate indication that the recruitment method was utilized, and the necessary information was provide to potential U.S. applicants.” This case establishes that employers can document their use of on-campus recruitment as an additional recruitment step through a variety of methods, as long as the employer can prove that the recruitment actually occurred and U.S. applicants were fairly apprised of the position.