Recently, the AILA published a practice advisory to its members recommending that we advise our clients to file an amended H-1b petition whenever there is a change in the work site. This advice derived from a series of interactions with the CSC who asserted that an amended H-1b petition was necessary whenever there was a work site change. Anecdotal evidence suggests that the CSC policy has been applied in H-1b extension petitions, I-485 applications, and H-1b revocation cases from both U.S. Consulates and FDNS site investigation referrals. AILA has urged USCIS HQ to address this very critical issue. Many of us believe that the revised I-129 form (issued in late 2011) with its clear language requiring the employer to attest to the statement, “If the beneficiary is assigned to a position in a new location I will obtain and post an LCA for that site prior to reassignment” had settled this matter but, based upon recent events, it did not, at least not in the eyes of the CSC. A memorandum from HQ would be nice but, since the CSC routinely ignores HQ directives eg. Neufeld FAQ’s, L-1b specialized knowledge definition, etc. it may be no more helpful than an umbrella in a hurricane.
It was recently reported that Brazilian politicians had decided to ease immigration rules to allow for more highly skilled professionals including IT workers and engineers to boost their lagging economy and stay competitive. Brazilian cos. currently complaint about a scarcity of talent and about immigration rules that are overly burdensome and create uncertainty in the hiring process. Sounds like the U.S. system.
On May 18, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Symrise Inc. v. Thomas Jost Mangos (2012 PER-00558). The employer in this case filed permanent labor certification for an Engineering Manager. The Certifying Officer (“CO”) issued an audit. In responding, the employer provided documentation proving that it placed newspaper advertisements on Sunday, June 28, 2009, Wednesday, July 1, 2009, and Sunday, July 5, 2009 with The Record / Herald News. The CO denied the application on the basis that the advertisement on July 1 did not constitute an additional recruitment step since it was placed in the same newspaper as the Sunday advertisements. It came to this conclusion from FAQ’s provided on the Department of Labor (“DOL”) website. The employer argued that the Wednesday listing constituted an advertisement with a local or ethnic newspaper and should be considered an additional recruitment step due to the difference in circulation numbers for The Record / Herald News on Wednesday through Saturday and for the Sunday edition. In reviewing the information, BALCA determined that the CO did not provide any information showing that The Record / Herald News does “not qualify as both a newspaper of general circulation and a local newspaper,” that FAQ’s are “not a regulation and therefore cannot impose substantive requirements on an employer,” and there “is nothing in the preambles to the Proposed Rule or the Final Rule to support the CO’s position.” Consequently, the case was remanded for the CO to determine whether The Record / Herald News can be considered a local newspaper and a newspaper of general circulation. While this case does not provide definitive statements that a Wednesday advertisement can constitute an additional recruitment step even when it is in the same newspaper as a Sunday advertisement, it is helpful because it allows for the possibility that a newspaper can fill both roles.
On May 7, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of MMB Stucco, LLC. In this case, the sole principal of the employer sought to sponsor his brother for labor certification. The Certifying Officer (“CO”) denied this case because it determined that “when the employer is a closely held corporation or partnership in which the alien has an ownership interest, a presumption exists that influence and control over the job opportunity is such that the job opportunity is . . . not open and available to U.S. workers.” In response, the employer argued it provided documentation to establish that the alien did not have any ownership rights of the employer. In addition, the employer stated that the CO was prohibited from determining that the position was not open toU.S. workers because it never requested any documentation regarding the recruitment efforts. BALCA noted that the basis of the CO’s denial was unclear since there was no information available that suggested that the recruitment efforts were undertaken in bad faith. Consequently, BALCA overturned the decision on the basis of due process and fundamental fairness. While this decision was reached based on the lack of available evidence, this case also reviews and upholds pre-PERM decisions on familial relationships. Specifically, BALCA noted that if “the job has not been specifically tailored for the alien, the Employer has undertaken recruitment in good faith, and the same has not produced applicants who are qualified, the [familial] relationship, per se, does not require denial of certification.” This statement should provide important support for situations where an employer is a closely held corporation and hopes to sponsor a family member.
In a recent article, NYC Mayor Michael Bloomberg attacked both President Obama and the Republican candidate Romney for their failure to take a leadership role in advocating for an overhaul of the U.S. employment based immigration system which is in deplorable shape and does not provide the economic boost that an improved, more open system would provide. President Obama has paid lip service to entrepreneurial visas while in office but, nothing more, and in fact, under the policies of his administration, there has been a systematic chilling effect on the legal immigration of STEM workers, healthcare workers, entrepreneurs, and other highly sought after professionals. Although, most insiders would argue that the chill on business immigration is a blizzard blowing from the plains of Iowa, the White House, who presumably has more control over Administration policy than a Senator from the other party, has done nothing. The article by Bloomberg provides several great resources setting forth the economic argument for better business immigration policies and is worth a read. So far neither party leader has been willing to lead on this important economic issue and, I for one, am expecting that the cold winds from Iowa will cotinue to prevail.
A special thanks to those of you who attended our IT and healthcare staffing seminar in Newark, NJ on Fri. We appreciate your attendance and participation in a lively discussion about the Neufeld memo, EB2 programs, L-1b’s, RFE’s, retrogression, HR 3012, and a variety of compliance related topics. We look forward to seeing you again next year at the same place !
Last week, the DOS released some updated information on exactly how it arrives at the cut-off dates used in the monthly visa bulletin. The DOS has several useful tools that help to explain the priority date system. The intricacies of the numerical system and all of the moving parts is somewhat akin to making sausage; a bit ugly to watch. Information is nice to have but, with the unpredictability that we have seen over the past several years, don’t act as if you are “current” until you see it in the Visa Bulletin.
Last week, the U.S. Consulate in Hyderabad announced changes to the process of submission of documents for H-1b and L-1 visa issuance. No longer will they require documents to be submitted in advance to the VFS but, documents must be brought in person at the time of the interview. This change also applies to persons that are part of the BEP program.
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 !