Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether dated screenshots and a CD with an audio recording of a radio advertisement constituted sufficient proof to establish that these additional recruitment steps occurred as part of the PERM process. In Matter of Waldorf School of Orange County, the employer submitted a labor certification case for the position of “Teacher.” The case was audited and the employer provided screenshots from its website that included the date and time to establish that it had posted the position on its website. The employer also provided a CD that included an audio copy of the posted advertisement that was placed on the radio and the broadcast contract. The Certifying Officer (“CO”) denied the case on the basis that screenshots did not constitute dated copies of the website posting as required under the law. The CO also stated that the employer failed to provide a copy of the text of the radio advertisement. BALCA reviewed the denial and reiterated that the “documentation requirement [for website postings] should be read with a degree of flexibility.” BALCA determined that screenshots are “dated copies” of the posting on the employer’s website and that an employer “need not submit a written text of a radio advertisement.” Rather, an audio recording is sufficient proof of the text of the advertisement that was carried on a radio station. Consequently, this denial was overturned. This case provides helpful information about how employers can document postings on their website and on radio stations to establish that they conducted the additional recruitment steps that are required as part of the labor certification process.
In a report that should surprise no one, the Officer of Inspector General found that the automation efforts of the USCIS were, to put it more bluntly, an abject failure. The report concluded that the current USCIS process was more appropriate for the 1950’s. To solve this automation problem, the USCIS is seeking more time and more money. Whether there will be any progress to at least the 1960’s remains to be seen.
The Department of State (DOS) has released the April Visa Bulletin There were no surprises. The “dates for filing” chart remained unchanged and the “final action dates” saw forward movement at a pace similar to past months. With only 5 months left in the fiscal year, several of the EB3 categories need to pick up the pace to arrive at the “file date” by Oct 1st.
Customs and Border Protection has stated that they will only accept educational equivalencies prepared by members of the National Association of Credential Evaluation Services (NACES.ORG) for cases presented at the Preflight Inspection or Port of Entry. A review of their website indicates that only 19 educational evaluation services providers are listed including the Foundation for International Services, Inc. and World Education Services, Inc. But other equally reliable service providers are not. Membership to NACES is by application and requires completion of a rigorous screening and selection procedure, which includes a two-member on-site visit at the applicant’s expense.
The final rule was release today, March 9, 2016, this document is unpublished on the Federal Register, but on 03/11/2016 it is scheduled to be published and available. Until then, you can see the pre-publication PDF version here: Final OPT STEM rule. The rule will go into effect in May. The highlight of the new rule will be that certain foreign students in F-1 status with degrees in science, technology engineering or math (STEM) will be able to extend their initial 12-month OPT period by an extra 24 months, for a total of 36 months.
DHS has stated that 17-month STEM OPT work permit issued before May 10 will remain valid until it expires, but that beginning on May 10, certain students will have a chance to apply for an additional seven months of OPT.
BALCA Reverses Denial Based Upon Failure to Include Travel Requirements in Job Order and Job Search Website
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in Matter of First Tek Technologies, Inc. that reiterated that job orders and advertisements conducted to fulfill the additional recruitment steps for a labor certification case are not subject to the advertisement content requirements specified in 20 C.F.R. § 656.17(f). The employer filed an Application for Permanent Employment Certification for the role of “Programmer / Analyst.” The case was audited and the Certifying Officer (“CO”) denied the case on the basis that the employer’s job order and the advertisement conducted through a job search website “did not include a travel requirements listed on the ETA Form 9089.” The CO cited 20 C.F.R. § 656.17(f) as the basis for the denial. 20 C.F.R. § 656.17(f) applies to “advertisements placed in newspapers of general circulation [and] professional journals.” In reviewing prior case history, BALCA determined that the Matter of Chabad Lubavitch Center and Matter of Symatec Corporation cases established that job orders and advertisements conducted to fulfill the additional recruitment steps are not required to “comply with the detailed content requirements of section 656.17(f).” Thus, the denial was overturned. The content requirements for the advertisements that are conducted as part of a recruitment effort for a labor certification case involve many nuances. The Hammond Law Group is happy to assist employers in drafting appropriate advertisements that meet the Department of Labor’s requirements.
The Department of State released the March Visa Bulletin. The dates for filing chart saw the EB3 all other category move to “current”. All other categories remained the same. On the priority date chart now called the final action chart, steady movement across multiple categories continued.
The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned the denial of a labor certification case that was submitted through the mail on the basis that the employer’s signature on the labor certification established that it was sponsoring the foreign worker. In Matter of La Hacienda Meat Market, Inc., the employer submitted a labor certification for the position of “Buyer / Produce.” The employer mailed the ETA Form 9089 to the Department of Labor because the employer was unable to pre-register electronically with the Atlanta National Processing Center. The mailed-in labor certification included a signature from the President of La Hacienda Meat Market in the employer’s declaration section. The Certifying Officer attempted to contact the employer three times by telephone to confirm sponsorship, but was unable to reach anyone. Consequently, the case was denied. BALCA reviewed the decisions of a number of cases that involved similar fact patterns and determined that “when an ETA Form 9089 is submitted via mail and includes the employer’s sworn statement under penalty of perjury certifying as to the conditions of employment offered, sponsorship is adequately verified.” Thus, the denial was overturned. While it is preferable to submit a labor certification through the online system, this case provides guidance that establishes that an employer’s signature on the ETA Form 9089 is sufficient to confirm sponsorship.
The Washington Alliance of Technology Workers (WashTech) continues its lawsuit in an attempt to end STEM OPT. On Feb. 4 WashTech sought review of the Aug. 12 order from U.S. District Judge Ellen Segal Huvelle, which vacated the 2008 rule extending the OPT period for foreign students with science- and math-related (STEM) degrees by 17 months, but allowed the U.S. Department of Homeland Security to reissue the regulation through the notice and comment process.
DHS last month said the district court shouldn’t have even reached the merits of the dispute, contending that WashTech doesn’t have legal standing because it hasn’t shown its members were harmed by the rule. WashTech counters that its standing is based on a group of American computer professionals are challenging regulations designed to create a “significant expansion” of foreign workers in their field of employment.
In its current appeal, Judge Huvelle found the group didn’t have standing to challenge that aspect of the program, as its members hadn’t alleged injuries earlier than 2008. She also found the claims were barred by the statute of limitations. WashTech “has not identified a single member demonstrating ongoing or imminent competitive injury caused by the existence of the pre-or-post 2008 version of the OPT rule,” it wrote. “The absence of such evidence means no Washtech member is ‘a direct and current competitor whose bottom line may be adversely affected by the challenged government action.’”
WashTech is grasping at straws as its one argument of merit, that the original 2008 rule was procedurally deficient, will be overcome once the new proposed STEM rule completes its notice and comment period. The new rule is expected to be published in the federal register on or before May 10, 2016.
The U.S. Department of Homeland Security will have 90 additional days to revise the F-1 STEM OPT rule. The original rule, allowing for 17 months of additional OPT time if the student was in a STEM field, was order to be vacated as of February 12, 2016. U.S. District Judge Ellen Segal Huvelle granted DHS’s request to extend the expiration date terminating the original rule so that the agency can avoid a regulation gap. USCIS now has until May 10, 2016 to revise and publish the new STEM OPT rule.
USCIS requested this extension citing the need for more time to review the more than 50,500 comments it received on its replacement rule and argued that allowing the old optional practical training regulation to expire next month would hurt tens of thousands of students relying upon it. The comment period ended November 18, 2015. Judge Huvelle agreed, starting that the significance of the undue hardship to STEM OPT participants and employers that warranted the stay in the first place “cannot be understated.”