green card

Latest on Trump’s Immigration Reform

On Wednesday, August 2, 2017, President Trump endorsed a new bill in the Senate aimed at slashing legal immigration levels, the Reforming American Immigration for a Strong Economy (RAISE) Act. This bill is a modified version of a bill senators Tom Cotton (Ark.) and David Perdue (Ga.) first introduced in April to cut immigration by half from the current level of more than 1 million green cards per year. To achieve this reduction and create what they call a “merit-based system,” Cotton and Perdue are taking aim at green cards for extended family members of U.S. citizens and legal permanent residents, limiting such avenues for grown children and siblings. Minor children and spouses would still be eligible to apply for green cards.

The highlights of the Senators’ bill propose to end the visa diversity lottery that awards 50,000 green cards a year, to areas in the world that traditionally do not have as many immigrants to the United States. The bill also caps refugee levels at 50,000 per year. Under the bill, the proposed immigration system would award points to green card applicants based on such factors as English ability, education levels and job skills. The senators said the proposal is modeled after immigration programs in Canada and Australia.

However, the bill’s prospects are dim in the Senate where Republicans hold a narrow majority. The legislation is expected to face fierce resistance from congressional Democrats, immigrant rights groups and business leaders, as well as, some moderate Republicans in states with large immigrant populations. Alex Nowrasteh, an immigration policy analyst at the CATO Institute, wrote in a blog that the bill “would do nothing to boost skilled immigration and it will only increase the proportion of employment-based green cards by cutting other green cards. Saying otherwise is grossly deceptive marketing.”

Calculating Your EB Experience Time

On April 17, 2017 an immigration policy memorandum was issued by the Service adopting “Matter of O-A- Inc.,” a copy of the memo can be found here, as a guidepost for USCIS decisions going forward. This case was focused on whether, at the time a provisional certificate is issued, a beneficiary has completed all substantive requirements to earn the degree and the university or college has approved the degree.

In this case, the beneficiary’s provisional certificate was issued May 17, 2006, but she did not receive her formal diploma until March 30, 2007, according to the decision. The priority date was Oct. 23, 2014. The director concluded that the beneficiary fell short of the five-year requirement because she accrued four years and eight months of qualifying experience between the diploma date and the priority date, but the agency said that, based on the evidence in the record, the issuance of the provisional certificate conferred the foreign equivalent of a U.S. bachelor’s degree. And the agency found that she had obtained at least five years of qualifying post-baccalaureate experience.

It was determined that the provisional certificate, together with the beneficiary’s statement of marks, showed that she had completed all the substantive requirements for her degree and that the university approved her degree. As such, the agency determined that the petitioner had shown that the beneficiary met the minimum education and experience requirements of the labor certification and EB-2 classification and sustained the appeal.

Going forward, the Service has been directed to conduct case-specific analysis to determine whether a beneficiary who received a provisional certificate had completed all requirements to earn the degree and that the school had approved the degree at the time the certificate was issued. This is good news for those beneficiary who get their provisional certificates much earlier than their diplomas.

Notice of Filing Is Not Required to List Every Job Duty and Requirement

The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that the notice of filing that must be posted before a labor certification is eligible to be filed is not required to list every job duty and requirement of a position that is being sponsored. In Matter of Eteam, Inc., the employer sponsored the position of “Programmer Analyst.” On the Form 9089, the employer specified that the position required a master’s degree in Computer Science or Engineering and one graduate course in database management and network security. This post-secondary education must have included software development using Unix and Perl. The case was audited and the employer submitted a notice of filing that did not state the education requirement or the coursework requirement of this position. The Certifying Officer denied the case on this basis. The case was appealed. BALCA reviewed a prior case, Architectural Stone Accents, Inc., which held that the federal regulations that govern notice of filings do not require every job requirement to be listed. While BALCA reiterated that notice of filings play an important role in ensuring that employees can provide information to a Certifying Officer about an employer’s application, it reiterated that the federal regulations “only require the [notice of filing] to contain information specific enough to apprise the U.S. workers of the job opportunity. The Employment and Training Administration did not write a regulation that mandates the employer list specific job requirements in a [notice of filing].” Consequently, BALCA determined that the notice of filing offered by the employer in this case was sufficiently detailed to inform U.S. workers of the job opportunity and overturned the decision. This case provides critical information about the content requirements of notice of filings.

Same or Similar Memo

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.

Card Production Delays

There has been reported delays in the production of I-765 and I-485 cards. This is due to the USCIS card production facility in Corbin, KY undergoing maintenance. All card production has been switch to another facility and of course that facility is now backlogged. If you are expecting an I-765 or I-485 card from a recently approved petition expect an additional 2-3 week delay in receiving your card in the mail. USCIS expects to resolve this issue sometime in September.

BALCA Upholds Denial of Labor Certifications Where Employer Failed to Provide a Signed Recruitment Report

In Matter of New York City Department of Education, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether a typewritten name could represent an electronic signature. The employer submitted labor certifications for the positions of “Students with Disabilities (Special Education) Teacher.” The cases were audited and the employer provided a recruitment report with the typed name of the employer’s signatory. The cases were denied on the basis that the employer failed to provide a signed recruitment report. The employer argued that the omission was not material and that the regulations do not require a handwritten signature on a recruitment report. In reviewing the requirements under 20 C.F.R. § 656.17(g)(1), BALCA noted that there is no distinction between handwritten and electronic signatures. However, BALCA also stated that there was no evidence that the employer intended the typewritten name to constitute a signature because the employer admitted that there was a “physically-signed copy of the report which was inadvertently omitted from the audit response.” Furthermore, BALCA noted that the typewritten name was not “preceded by the customary ‘/s/’ for electronic signatures, [which] suggests that the [signatory] did not execute or adopt the typed word with the intent to authenticate the document.” Consequently, BALCA upheld the denial of these cases. However, it did state that “there is indeed no indication [in the federal regulations] that recruitment reports, even those delivered by mail, require original signatures.” Through this statement, BALCA seems to indicate that original signatures are not required on recruitment reports. Given the miniscule distinctions made in this case though, the Hammond Law Group suggests that employers provide handwritten signatures on all recruitment reports to avoid the possibility of denials.

BALCA Discusses What Terms and Conditions of Employment Must be Listed in Recruitment Materials

At the end of 2014, the Board of Alien Labor Certification Appeals (“BALCA”) considered what employee benefits might be considered a “term and condition” of employment that should be listed in an advertisement that is placed as part of a recruitment effort. In Matter of Needham-Betz Thoroughbreds, Inc., the employer submitted a labor certification for the position of “Farm Manager.” The case was audited and the employer explained in the audit response that the employee was given the option to live rent-free on-site at the job location. The DOL denied the case on the basis that the recruitment that the employer conducted failed to inform potential applicants of the opportunity to live at the job site for free. Under the PERM regulations, advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL determined that the chance to live rent-free at the job site was a term and condition of employment that U.S. workers should have been apprised of. The employer appealed the denial. BALCA reviewed contradictory case law and found that free housing was a term and condition of employment that should have been listed in the recruitment. Specifically, BALCA stated that “the benefit of free housing is not a standard benefit attached to a job opportunity. Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days.” Through this statement, BALCA recognized that health insurance and vacation days are not benefits that must be listed in advertisements that are conducted as part of a recruitment effort. However, more unusual benefits, like free housing, should be stated. This case provides important information about the types of benefits that an employer must list in the recruitment it conducts for labor certification cases.

AAO Determines that Beneficiary Cannot Use Experience Gained with the Petitioner to Qualify for a Sponsored Role

In an unpublished decision, the Administrative Appeals Office (“AAO”) considered whether the Beneficiary of a filed I-140 Immigrant Petition for Alien Worker could use experience gained at the sponsoring employer to demonstrate that he met the requirements of the role. In this case, the sponsoring employer filed a labor certification for the position of repairman and stated that this position required two years of experience. The employer also listed in the labor certification that the Beneficiary had over two years of experience as a repairman at a prior employer and close to six years of experience with the sponsoring employer. When the I-140 was filed, the employer only provided documentation demonstrating the experience that the Beneficiary obtained with it. The case was denied. In filing this appeal, the sponsoring employer argued that USCIS should “be focusing on whether the beneficiary was qualified for the position offered before the priority date . . . rather than whether the beneficiary was qualified before being hired by the Petitioner.” In denying the appeal, the AAO stated that the employer was attempting to qualify the Beneficiary through the experience he gained while working for it. However, since the Beneficiary’s experience with the sponsoring employer was substantially comparable to the position offered, this experience could not be used to establish that the Beneficiary had the necessary qualifications for the role.  While there are provisions in the law that allow employers to use experience that a Beneficiary obtained while working for a sponsoring employer, they involve specific requirements that the employer and Beneficiary must meet in order to be successful. The Hammond Law Group is always happy to discuss these types of cases to determine whether it is feasible to use experience gained at a sponsoring employer in the greencard context.

A Sign of Things to Come?

United States Citizenship and Immigration Service (USCIS) has issued a procurement request for over 34 million work permits and green cards. This would be well above their normal levels.  This has caused Republicans to speculate that President Obama is readying a sprawling executive order to drastically change the immigration laws.

Don’t hold your breath. USCIS has made a statement that asking contractors to prepare for contingencies is not unusual and that similar provisions are built into other contract bids the agency has made.  “Solicitations of this nature are frequent practice for all USCIS contracts and allow the agency to be prepared for fluctuations in the number of immigration applications received, which can arise for any number of reasons,” USCIS spokesman Chris Bently said in a statement. The government typically uses measures like this to keep costs down in case of unforeseen circumstances.

So, while it is a good thing that USCIS is preparing to issue more work permits and green cards than normal, this probably shouldn’t be taken as a sign that sweeping immigration reform is right around the corner.

New Immigration Bills May Provide Greater Opportunities for STEM Graduates to Obtain Green Cards

During this past month, members of the U.S. Senate have introduced a number of bills that would allow STEM graduates to more easily receive green cards once they are employed in a relevant field. On May 15, 2012, Senator John Cornyn (R-TX) presented Securing the Talent America Requires for the 21st Century (“STAR Act”). This bill would: (1) allocate 55,000 visas for eligible STEM graduates who have obtained a master’s or Ph.D from a qualifying U.S. research institution and have job offers in a related filed, (2) offset these visas by eliminating the Diversity Visa lottery program, and (3) allow dual immigrant intent for individuals admitted as students to pursue a STEM degree. Senators Lamar Alexander (R-TN) and Chris Coons (D-DE) also introduced a bill on May 15th. Sustaining our Most Advanced Researchers and Technology Jobs Act of 2012 (“SMART Act”) would permit students who enter the United States to obtain a master’s or doctorate degree in a STEM field to use a new visa called an F-4. Once these students graduate from their program, they will have a year to find a job in a STEM field in the United States. After obtaining employment, these students will be able to adjust their status to Legal Permanent Resident. Finally, on May 22nd, Senators Marco Rubio (R-FL), Chris Coons (D-DE), Jerry Moran (R-KA), and Mark Warner (D-VA) submitted the Startup Act 2.0.  This legislation would create a new STEM visa to allow foreign students who graduate with a master’s or Ph.d in a STEM program from a U.S. institution to receive green cards. It would also create an entrepreneur’s visa for immigrants to launch businesses in the United States. While it remains to be seen whether these bills will be successful in this election year, the Hammond Law Group applauds these Senators for their efforts.