The Department of State has released the October Visa Bulletin and all EB3 categories saw forward movement with the EB3 Philippines and the All Other categories surging forward 6 months. Unfortunately, EB2 India saw no forward movement and the DOS predicted that retrogression in this category could come as early as Nov. As a practical matter, this means that if you are in the EB2 category and your priority date is current, get your I-485 filed by the end of October and if you are already filed, respond to any RFE’s as quickly as possible as the window is closing quickly.
En Banc Panel of BALCA Reverses CO’s Denial on Advertising Content Requirements for Additional Recruitment Steps
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the content requirements of advertisements that are placed as part of the additional recruitment steps in labor certification. In Matter of Symantec Corporation, the employer chose to place an advertisement on a job search website as one of the three additional recruitment steps that are required in the labor certification process for professional occupations. The Certifying Officer (“CO”) denied the case on the basis that this advertisement included a travel requirement that was not listed on the ETA 9089. Specifically, the advertisement stated that the individual filling the role “may be required to work . . . at various unanticipated sites throughout the United States.” The CO stated that this violated provisions of the federal regulations that discuss the content requirements for the mandatory recruitment steps and referenced Credit Suisse Securities (USA) LLC for support of the idea that the advertising content requirements of the additional recruitment steps must match those that are demanded of the mandatory recruitment steps. After receiving a request from the CO, an en banc panel of BALCA reviewed the case and determined that the content requirements for the mandatory recruitment steps are not imposed on the additional recruitment steps. Specifically, this en banc panel reviewed the relevant regulations and found that they were silent on specific content requirements for the additional recruitment steps. Consequently, it found that the Department of Labor (“DOL”) “did not intend to impose these content requirements on all types of advertisements.” Instead, employers must only advertise “the occupation involved in the application” in the additional recruitment steps, not the “job opportunity.” Finally, BALCA reminded the DOL that a “CO may not deny a [PERM application] based on a petitioning employer’s failure to comply with an unwritten requirement that has no basis in the clear text of the regulations.” The Hammond Law Group applauds BALCA for clarifying the advertisement content requirements of the additional recruitment steps and for this well-reasoned decision.
For those of you holding out hope for Executive Action to address some of the needs of the immigration system, stop holding your breath. President Obama recently announced that he will still take action but, not until later. Many believe that he received significant negative reaction from within his own party over his planned actions and the fear was that his actions would sway the mid-term elections and hand the Senate to the Republicans. For now, we continue to live with antiquated laws and an agency beating its own drum.
With President Obama promising Executive Action to address U.S. immigration problems, many stakeholders including those from the tech industry have heavily lobbied for him to use his pen to address not, only the border crisis, DACA children, and the deportation system but, also retrogression, H-1b visas, and the like. The conventional wisdom says that the President will stay true to his core constituents and offer no relief to employment based (legal) interests beyond the H-4 employment rule which has already been subjected to a comment period and merely awaits final regulatory approval but, until he speaks, we can all dream a little. Check out Computerworld’s take on this subject.
HLG is pleased to announce that Lynette Guzzino has joined the firm. Lynette is a graduate of Loyola University New Orleans College of Law and the Thunderbird School of Global Management. Her practice will focus in the area of university professors, private and public researchers, and other individuals seeking immigration based upon their personal qualifications.
The Department of State (“DOS”) has announced that it has made substantial progress in resolving the performance issues with the Consular Consolidated Database. This database crashed in late July, which caused the DOS to be unable to issue visas to applicants. Since this problem affected Consulates throughout the world, the DOS was experiencing a significant backlog. It appears that the Consular Consolidated Database is operational again. The DOS has issued visas to applicants who were part of the backlog throughout the world. Furthermore, the DOS stated that it is printing visas for all cases with very little delay. At this time, individuals who were delaying making travel plans due to concerns about whether a visa would be issued in a timely manner can begin to arrange for trips abroad.
The DOS has released the September Visa Bulletin, and as is typical for the last bulletin of the fiscal year, most categories saw no movement however, EB2 India and EB3 Philippines saw forward jumps. There is great anticipation for the October Bulletin to see if India EB2 holds its ground or retrogresses.
Our friends to the north have been observing our current immigration system and have noted that the US policy and practice at present is to refuse work visas to high tech workers (STEM grads), entrepreneurs, and specialized workers from international companies and have decided that they may be able to take advantage of our ineptitude. I can only imagine the discussion, maybe it went something like this (picture with a Molson and hockey in the background, of course) “Don’t you think we could use an influx of some smart, talented, tax-paying, revenue creating international workers, Eh ?” Seems so simple doesn’t it, Washington DC ! With the current culture of NO so prevalent at the USCIS service centers and the failure to produce any immigration reform that among other things addresses, the over 20 year wait for a green card for an Indian national IT engineer, it is not surprising that scores of quality international workers will seek alternative opportunities and that other industrialized nations will seek to create options for them. We can only hope that they will use their Canadian resident cards to vacation in Florida and Arizona in the winter.
The Department of State (“DOS”) has released additional information that discusses what caused the Consular Consolidated Database to crash and its impact at Consulates throughout the world. Since July 20th, the Consulates have printed nearly 250,000 nonimmigrant visas. Normally, the DOS would expect to issue about 480,000 nonimmigrant visas during this period of time. This means that the Consulates have only been able to print visas for about half of the expected applicants. Unfortunately, the DOS believes that it will take weeks before its Consulates are able to return to normal processing times for issuing visas. The DOS provided some further information, including:
- The Consular Consolidated Database, including backup systems, crashed as a result of a software upgrade issue.
- The DOS is prioritizing immigrant visas, adoption cases, and emergency nonimmigrant visas.
- There is no expected time frame when the DOS expects this problem to be resolved.
The Hammond Law Group urges individuals who have not made specific travel plans and who will require a new visas stamp in their passport to return to the U.S. to hold off on traveling until this problem is resolved.
During the busy summer travel season, the Department of State’s Consular Consolidated Database has crashed. This database is responsible for supporting the Department of State’s efforts to verify information in passports and visa requests. The Department of State has reported that unspecified glitches in the database have resulted in “significant performance issues, including outages in the processing of applications for passports, visas, and reports of Americans born abroad.” The problem exists throughout the world and in all categories of applications. The issues caused by this glitch have resulted in a backlog of applications. One report stated that an unspecified country had close to 50,000 applicants who were experiencing delays. While the Department of State is working to rectify this problem, the Hammond Law Group suggests that individuals who have not made travel plans avoid going abroad for visa stamping interviews until this backlog has eased.