USCIS recently released a 48 page California Service Center (CSC) L-1B denial template in response to a Freedom of Information Act (FOIA) request from the American Immigration Lawyers Association (AILA). The 48 denial template covers every conceivable way to deny an L-1B petition, whether or not supported by law, and even includes the kitchen sink. Although a few of the pages do in fact cite to the immigration regulations, the vast majority of the template is cookie cutter, cut and paste and insert here. This includes guidance to the adjudicator to [Insert name of petitioner] and [Insert CBP analysis of why petitioner/beneficiary failed to establish eligibility]. One of the many problems with this type of large template is that too much cut and paste and [insert here] leads to laziness, intended or not, on the part of the adjudicator. Ultimately, what we have seen in practice is that even after a comprehensive review of the denial, we are unable to determine exactly why the petition was denied. Which makes it tough to draft a motion to reconsider or motion to reopen. Other times we find that the denial includes the wrong petitioner or beneficiary or discusses facts not specific to the particular case that was denied. While USCIS states that such a template is needed for consistency of its decisions, we know that in real life, no two petitions are the same and thus, no two decisions should be the same.
Recently, the DOL released data on PERM applications processed in the 2nd Q of FY 2014 which ended March 31, 2014. Approximately 10% of applications filed are being denied and almost 30% of applications filed are currently under audit review. Interestingly, the number of new applications filed has dropped by over 10% from FY 2013.
On April 15, 2014, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Celmac Technology Services LLC. In this case, BALCA relied on the American Immigration Lawyer’s Association’s (“AILA”) notes from an April 11, 2013 meeting with the Office of Foreign Labor Certification (“OFLC”) National Stakeholders’ Quarterly Meeting to find that an employee referral program was appropriately used as an additional recruitment step in a labor certification case. In this case, the Certifying Officer (“CO”) issued a denial based on the fact that it found that the employee referral program that the employer used was invalid. It reached this decision because the employer had a small number of employees and relied heavily on foreign workers in its information technology business. Consequently, the CO found that the employee referral program was “not a recruitment method most likely to bring response from available U.S. workers.” The case was appealed and the DOL did not submit an argument in response to BALCA’s Notice of Docketing. In considering the case, BALCA reviewed statements made by the OFLC in its meeting with AILA. At this meeting, AILA questioned the “validity of PERM denials based on the use of an [employee referral program] where the employer was deemed too small (anywhere from 5 to 50 employees).” In response, the OFLC stated that “those denials were issued in error, and have been reversed.” Since the DOL confirmed to AILA that these denials were erroneous and the DOL did not make any argument in support of CO’s position, BALCA overturned the decision. This case provides support for the idea that smaller employers can use an employee referral program as an acceptable additional recruitment step in a labor certification case. However, the Hammond Law Group suggests that employers only use these programs as an additional fourth recruitment step due to their inconsistent treatment by the DOL.
Mike Hammond will be a speaker at a webinar being hosted by TechServe Alliance focusing on issues impacting IT and Engineering Staffing cos.
Canada recently announced major changes to its immigration laws by creating an “Express Entry” program for highly skilled immigrants. The keys to this program are matching skilled workers with the needs of the Canadian economy and an emphasis on permanent immigration. This comes at the same time as the U.S. immigration system is in the process of rejecting almost 100,000 skilled professionals who were seeking H-1b work visas. Many of these rejected have earned U.S. Masters and Doctoral degrees, and all were chosen by U.S. employers to fill jobs needed in the U.S. Maybe some of the rejected H-1b seekers will now have the opportunity to take their talents to Canada. (Sorry Cleveland, I know using this phrase hits close to home) Wake up Congress !
Golf International DBA Desert Canyon Golf, an E-Verify employer, was found liable for 129 Form I-9 violations by the Office of the Chief Administrative Hearing Office (OCAHO). This included 125 violations consisting of failure to ensure that employees properly completed Section 1 of Form I-9 and/or failure to properly completing Section of Form I-9 and four violations consisting of failure to prepare and/or present Forms I-9. The total fine was $136,697.00. In its decision, OCAHO made it clear that the good faith defense is only available for technical and procedural Form I-9 violations and that participation in E-Verify DOES NOT exempt an employer from properly completing, retaining and producing for inspection Forms I-9 that relate to its employees. This is a good reminder that all employers should audit their Forms I-9 and review any internal procedures regarding the proper completion and retention of their Forms I-9 on a regular basis. Remember – An employer’s first and most important responsibility is to properly complete a Form I-9 for each new employee regardless of whether or not they use E-Verify.
In the days since the USCIS announced the large number of H-1b cap petitions filed this year, numerous articles have been written on the topic discussing the need for immigration reform and an increase in the number of H-1b’s available each year. Here are a few to read: BloombergBusinessWeek ; Computerworld; and our friend and fellow immigration attorney Cyrus Mehta published an insightful blog post on the subject.
Today, the USCIS announced that they received approximately 172,500 H-1b cap petitions. The lottery was completed today and 85,000 lucky petitions were selected for further processing. The remaining 87,500 rejected petitions will be returned. We expect to start receiving receipts and rejections in the next week. Premium processing of cases is expected to start no later than April 28th. Earlier this week, President Obama made a speech declaring how important it is for U.S. economic growth to keep the best and the brightest in the U.S. and to encourage entrepreneurship. With today’s announcement that over 50% of the best and brightest, as selected by U.S. employers, are being rejected for jobs in the U.S., it may provide the impetus for House Speaker Boehner and the Republicans in the House to stop holding CIR hostage and give appropriate consideration to the Senate bill which was passed in the summer of 2013 with wide bi-partisan support but, has not even been considered in the House.
The DOS has released the May Visa Bulletin. The only category seeing a significant jump was the EB3 Philippines category. A few categories saw slight movement while others, including the “all others” EB3 category failed to advance. Congressional action to solve the retrogression issue is long past due.
The StarTribue recently reported that Cargill, a giant in the agribusiness world, has announced that it will outsource a portion of its information technology services to India. This will affect 900 jobs worldwide, including 300 in the Twin Cities. These jobs will be outsourced to Tata Consultancy Services, a large IT outsourcing firm in Mumbai, India. Some of the affected employees may be offered new positions at Cargill, others may be offered positions at Tata, and the remainder will be laid-off. With three percent unemployment in the information technology industry, we don’t blame Cargill for outsourcing these jobs to India when our outdated immigration laws prevent companies from employing specialized workers here in the U.S., especially when the H-1b cap is reached in just five days. We encourage our readers to contact their Congressional representatives to urge that new immigration laws are passed.