On November 20, 2015, the USCIS released its draft memo on Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability for comment. A copy can be found here. The memo details how Officers should evaluate two different sets of job duties as they relate to Standard Occupational Classification (SOC) codes. Of note, is that the same or similarity of the two position can be shown if the jobs are found within the same broad occupational group code, the first 2 digits. Officers are also instructed to take an individual’s career progression into consideration and they may also consider the difference in the individual’s wages. The comment period end January 4, 2016.
At a time when the US refugee program is under attack and Donald Trump is pounding his fist and screaming about building a wall and forming a quasi police force to round up and remove 11 million undocumented persons, Senators Grassley and Durbin have also sprung to life and re-introduced legislation from 2007 that would severely and negatively impact the IT and engineering staffing industry, all under the guise of protecting US workers. The thought is well-meaning but, the plan has already been rejected on at least 2 other occasions. The H-1b program needs reform but, it needs fresh ideas not tired old re-treads.
The Department of State (DOS) has released the December Visa Bulletin and as expected, several categories saw forward movement consistent with the “projections” inherent in the “Dates for filing” chart. The December bulletin also contained some projections for the next several months which indicated that we may see even faster than expected forward movement for the EB3 all other category, EB2 India, and EB3 China categories.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the Department of Labor (“DOL”) is entitled to a presumption that its audit notification letters are delivered to employers and their agents. In Matter of DGN Technologies, Inc., the employer submitted a labor certification case for the position of “Programmer Analyst.” The case was selected for audit and the DOL asserted that it sent an audit notification letter to the employer’s agent. No response was ever received from the employer or its agent. Consequently, the case was denied. The employer requested reconsideration on the basis that it never received the audit notification letter. The denial was upheld by the Certifying Officer (“CO”) on the basis that the audit notification letter was sent to the address listed by the employer on its Form 9089. The case was forwarded to BALCA. BALCA determined that a lengthy case history established that the CO was “not entitled to a presumption of delivery of mail sent by the National Processing Center in the absence of proof of its internal mailing procedures,” and overturned the denial. While it is critical that employers routinely check their mail for correspondence from government agencies, this case does provide support for the idea that the DOL may not automatically deny a case when the employer failed to respond to a request due to the fact that it never received the request in the mail.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether candidates that a state workforce agency matched to an open position must be considered applicants for purposes of preparing a recruitment report as part of the PERM process. In Matter of Lakha Enterprises, Inc., the employer submitted a labor certification case for the position of “Cook.” The case was selected for supervised recruitment. The employer submitted documentation that a job order was placed with the Illinois State Workforce Agency (“ISWA”) and that the number of matches was 0 and the number of recruiting outcomes was 20. In preparing the recruitment report, the employer did not list the candidates who were listed by the ISWA as part of the recruiting outcome because these candidates did not affirmatively apply for the job. Rather, these candidates only “inquired about the job posting by viewing it, and did not actually apply for the job.” The Department of Labor denied the case on the basis that these 20 candidates were not listed in the recruitment report. In reviewing the case, BALCA considered the DOL’s FAQ’s which state that an “employer is responsible for considering / contacting those applicants who have affirmatively provided a response as specified by the employer in the job order.” BALCA found that the job order in this case instructed applicants to apply through submitting a resume to the employer. However, none of the 20 candidates submitted a resume. Thus, they did not affirmatively apply for the position. BALCA reversed the denial on the basis that these 20 individuals were not actually candidates for the position because they did not affirmatively apply for it. This case establishes that individuals who are matched to an employer who has submitted a job order as part of the PERM recruitment process will not be considered applicants unless they actually apply for the posted position.
On October 19, 2015, the Department of Homeland Security published a proposed regulation that is a direct response to a federal judge’s order striking down the existing STEM OPT program because of a lack of compliance with the Administrative Procedures Act. The proposed rule would make several changes to the F-1 STEM OPT program and includes formal rulemaking for the so-called “cap-gap” rule. Public comments to the proposed rule are due by Nov 18, 2015. Below is a listing of what we consider to be the highlights of the proposed rule.
1. The STEM OPT program would be extended to 24 months. Individuals who received a degree in certain science, technology, engineering and math fields could receive an additional 24 months of optional practical training beyond the 12 months provided to most F-1 graduates.
2. Employers must participate in E-Verify in order to hire STEM OPT graduates.
3. Employers must create a formal mentoring and training plans for STEM OPT employees.
4. Employers must also have a process in place for evaluating the STEM OPT employee.
5. Employers must demonstrate that US workers are being protected by demonstrating that the employer has the resources to provide mentoring and training and the employer will not lay off US workers as a result of hiring a STEM OPT worker.
6. Employers will be subject to site visits by the DHS to insure compliance with the mentoring and training program rules.
7. The proposed rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences, engineering/engineering technologies and computer/information systems. Health and social sciences are not included. The DHS will publish a list of accepted STEM fields in the Federal Register.
I normally do not post about subjects such as detention, removal, deportation, etc because the readers of this blog are generally professional workers on H or L visas and those subjects though very important, are not relevant. However, I read with interest an article posted on law360.com which told of various advocacy groups who were complaining that a Federal Judge had issued a clear directive and the DHS had simply ignored the order and proceeded to act without a change in practice. Unfortunately, that is the reality that US corporations and legal foreign workers face every day from the USCIS. Laws are clearly written, regulations are promulgated, and HQ directives are issued and the examiners who control the decisions, turn a blind eye and simply ignore the law, knowing full well that there is no practical remedy for business and workers to pursue. The L-1 business community recently was excited when a new policy memorandum was released but, to date, the application of that policy has been ignored. The same old decisions and reasoning is being applied. We have also seen it with respect to amended petitions, extensions, ability to pay, Neufeld memo, and we can go on and on. When an entire agency knows it will not be held accountable, it simply does what it wants.
The DOL has released final data for FY 2015 for the PERM program. Almost 70% of applications were filed for IT and engineering positions and almost half of all filings required an advanced degree. The approval rate for cases adjudicated was over 90%. The data and processing times suggest a backlog is forming as they have almost 60,000 cases pending and only processed 85,000 cases during the year. Audit cases are taking almost 18 mos. for review and at present, over 13% of pending cases are under audit review with another 9% under appeal. The President’s directive to look at ways to modernize the PERM program will hopefully address these and other issues.