Immigration Visa Lawyer Blog

The Board of Alien Labor Certification Appeals (BALCA) overruled the US Department of Labor (USDOL) denial of a PERM application on the basis that the employer insufficiently provided notice of the inventives in its pre PERM filing Employee Referral Program.

The US Department of Labor Certifying Office has recently been focusing on the sufficiency of the Employee Referral Program provided by employers as one of the alternative recruitment measures employers are required to undertake prior to filing of the PERM application. In a recent decision, the importance of meticulous compliance with the format requirements included in the PERM regulations was again confirmed in the decision of Total Systems Services Inc. handed down by BALCA recently.

By way of background, employers wishing to file for permanent residence under the second or third preference employment based categories for one of its employees in a professional occupation, must first file application with the US Department of Labor attesting that it had searched the market and that there are not any US worker who is qualified, able and willing to occupy such a position. PERM regulations are intricate and complex and they require the employer to engage in rigorous pre PERM filing recruitment measures to demonstrate that it had in fact tested the labor market in good faith. There are four levels of recruitment steps: 1) the employer must publish and advertisement in a newspaper of general circulation; 2) the employer must post a job order with the State Workforce Agency having jurisdiction over the place of employment; 3) the employer must also choose from ten (10) alternative recruitment steps; and finally 4) the employer must post an internal notice of the filing of a PERM application.

The employee referral program is one of such ten (10) alternative recruitment steps that could be chosen by the employer in its pre PERM filing campaign. It is an inexpensive recruitment step that the employer can easily implement. Even if the employer did not have an existing employee referral program, it can establish one for the purpose of a pre PERM filing recruitment process. The regulatory provision governing the employee referral program is somewhat tacit and can be found under 20 C.F.R. § 656.17. It states: The use of an employee referral program with incentives can be documented by providing dated copies of employer notices or memoranda advertising the program and specifying the incentives offered." Emphasis added. Recently the USDOL has been critical of any such "employer notices" which do not specify the "incentives offered." Put in other words, any notice posted by the employer in a recruitment steps involving an employee referral program must clearly state what gain an employee will realize if he or she referred a successful candidate to the employer in connection with the job vacancy. If the notice did not clearly post such an incentive, the USDOL is recently denying cases on this basis.

The employee referral program preceded the creation of the PERM process in the pre PERM labor certification Reduction In Recruitment ("RIR") rules. Those who practiced immigration law prior to the enactment of the PERM regulations in 2005 recall the RIR program. At that time, the USDOL came up with ad hoc rules which basically said that pre labor certification filing recruitment activities will forgive a supervised recruitment process. Under the RIR rules, the employer was required to show three recruitment steps which included at least one print advertisement. There were no rules about the format of the recruitment activities. Hundreds of thousands of labor certificate applications were filed and approved through a culture of loosely implemented recruitment campaigns including employee referral programs. This culture somewhat survived the introduction of the PERM regulations despite the clear definition of the PERM regulations in this subject matter. Recent enforcement measures by the US Department of Labor relative to the employee referral program will now force employers to sharpen their pencils when they are drafting such a recruitment step.

In Total System Services Inc., BALCA examined the sufficiency of the employer referral program utilized by the employer as one of its pre PERM filing recruitment steps. In reversing the US Department of Labor denial, BALCA stated that the employer's employee referral program recruitment step was adequate. In this case, Total System Services Inc.'s PERM application was audited by the USDOL. The employer submitted proof of its recruitment activities including a notice pursuant to its employee referral program. The notice stated:

For the Project Manager position, you may refer a friend by submitting resume to Kerri Alexander, Human Resource Manager, 1600 1st Ave Columbus, GA 31902

The USDOL denied on the basis that the employee referral program notice did not "specify the incentives offered" pursuant to regulations. The employer filed a motion for reconsideration arguing that the employer had separate documentation which clearly described the program in details and provided monetary incentives. Such additional documentation was provided to the company's employees via the intranet. This documentation was originally offered in the response to the audit request. The Employer further argued that the regulation at 20 C.F.R. § 656.24(g)(2)(ii) allows it to present such documentation on reconsideration since it had previously been presented in the audit response. The USDOL denied the motion for reconsideration. Upon appeal to BALCA, the Board stated that any issue with the employer's program was cleared by the reconsideration. It determined that the US Department of Labor must had overlooked these submittals in the audit response.

Continue reading "PERM Update: In Total System Services Inc., BALCA Overrules CO's Denial of PERM Application on Issue of Adequacy of Notice Re Employee Referral Program" »

In order to recruit and retain the world's top talent in the professional and skilled trades, many businesses offer to sponsor the Green Card petitions of employees whom they wish to retain. Nine times (9) out of ten (10), sponsoring the employment based Green Card of a foreign national means that the US Department of Labor will scrutinize the job, the business and the alien through the PERM process.

Before the Process Starts: Know the Order of Operations for the PERM and Employment Based Green Card Process

Attorney's have a natural inclination to toss around legalistic words and acronyms. Among the usual suspects in the field of immigration law are the often used yet rarely defined terms such as PERM, Labor Certification (Labor Cert or simply LC), Green Card and Permanent Residency. Employers need to know that obtaining a Green Card through the PERM process involves three distinct applications/petitions made to two (2) different federal agencies over the course of one (1) to nine (9) years. Below, I have listed and defined the major road signs along the employment based Green Card journey in order to clarify the process and cut through the legal jargon.

Permanent Residency - This is the intended result and desired outcome of the employment based visa process. Permanent residency is perhaps best understood when compared to the temporary categories of visa (H-1B. L-1. E-2, B-2 and J-1). The major difference is simple, permanent residency allows the alien to live and work permanently, or at the least for a very long time with renewable intervals under good behavior.

All Green Cards come from the same source and give the same rights to the card holder, whether the basis for the green card is an employment based petition, asylum/refugee based petition or marriage/ family based petition. The federal government has decided that after a Green Card petition has been approved, the alien must wait a certain period of time until a green card will be made available to them. All Green Cards, regardless of their basis, are applied for using the I-485 Application Document.

Every category of petition has a different wait time. Within every category of petition, different countries have longer or shorter wait times. Notably, employment based applications from China and India usually have a wait time of five (5) to nine (9) years after they have been approved to file for a Green Card. The Department of State lists and updates the wait times for such Green Card petitions on a monthly basis.

Green Card - This is the official document which states the alien's permanent residency status. It is an ID card, currently pink in color but soon to return to a green hue, that the holder can carry to prove their immigration status. Status as a permanent resident does not disappear if the card is lost or stolen, although the alien should apply for a new card, as with any government issued ID.

Labor Certification - Labor certification is what the Department of Labor gives to the employer, proving that the employer has followed the steps to hire an alien and sponsor their work based permanent for an employment based visa. The Labor Certification is a double sided document printed on special paper with a magnetic strip. It must be applied for by filling out a Labor Certification Application either online or using a paper application. Essentially, with this document, the Department of Labor Certifies that the employer has looked for, but has not found an American worker who is equally as qualified, ready and willing to perform the job needed. With this document in hand, the employer can request permission to apply for a Green Card from the United States Ictizen and Immigration Service (USCIS). The permission is requested through the I-140, Petition for an Immigrant Worker document.

PERM - An acronym for the process that the employer must undergo before a labor certification application can be filed. PERM is short for the almost nonsensical and never used in spoken language, Program Electronic Review Management.

The PERM process requires that the employer first advertise the job opening to American Workers before hiring an Alien. Not just any advertisement will suffice, the regulations mandate a series of newspaper advertisements, postings with state employment offices, physical posting s and usually (3) of ten (10) various additional advertisements. Every advertisement must contain carefully crafted language to pass federal guidelines. Additionally, strict time frames must be followed for every step. It for this reason that the expert guidance of an immigration attorney is highly recommended in navigating the PERM process.

Continue reading "Columbus Immigration Lawyer Discusses the Steps in the Employment Based Green Card Process through PERM" »

The answer to the above question is unequivocally, NO. H-1B workers do not steal jobs from U.S. workers. In fact, an economy with a strong H-1B work force will create jobs for U.S. workers and help the U.S. maintain international competitiveness.

There is a common misconception that H-1B workers steal jobs from U.S. workers and undercut wages; however emperical evidence reveals a vastly different story. The H-1B specialty occupation worker program has drawn the world's best and brightest highly specialized workers into the U.S. labor market, strengthening the U.S. economy and promoting efficiency and stability into a wavering U.S. workforce. This article "debunks" the common myths surrounding the H-1B visa category and presents the truth about the H-1B program.

True or False?: H-1B Workers Steal Jobs from U.S. Workers
FALSE: H-1B specialty occupation workers do not steal jobs from qualified U.S. workers. Foreign born H-1B temporary workers fill a void in the U.S. labor market by allowing U.S. companies to hire highly skilled foreign workers. The petitioning U.S. company is required to pay the higher of either the prevailing wage or actual wage paid to similary situated American workers. Employment under the H-1B visa category is a volitional act made by U.S. employers who choose H-1B workers to help maintain a competative workforce domestically and abroad.

H-1B Specialty Occupation Defined
The H-1B visa category allows an employer to temporarily hire nonimmigrant workers in specialty occupations. Federal law defines specialty occupation as one requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor's degree or its equivalent as a minimum. This allows a U.S. company to hire highly skilled individuals to fill gaps in employment for temporary periods of time (in three year increments for up to six years, with exceptions) while the U.S. labor market struggles to produce qualified workers. Even in the wake of the "great recession" international competativeness in the U.S. economy depends greatly on the availability of H-1B workers from abroad.

True of False?: H-1B Workers Undercut the U.S. Labor Force by Providing Cheap Labor
FALSE: Under the H-1B Visa program, the U.S. employer is required to pay the H-1B worker the higher of either the "prevailing wage" for the occupation within the location of employment or the "actual wage" paid to similarly employed U.S. workers. In addition, taking into account the legal and governmental fees associated with filing the H-1B petition (which are estimated at around $6,000) and the cost to sponsor an H-1B worker for her green card (which can cost as much as $10,000), hiring an H-1B worker is not a "cheap" endeavor. Again, hiring foreign labor under the H-1B visa category is a choice made by a U.S. employer. This choice is often made with the understanding that hiring one H-1B worker from abroad can in fact create U.S. jobs. Here's how:

Opponents claim that H-1B workers depress wages and cause unemployment by taking jobs from American workers. However, H-1B workers keep American companies in the United States and create U.S. jobs through support staffing and the like. Bill Gates recently remarked in testimony before the U.S. House of Representatives, Committee on Science and Technology:

"If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well. For instance, Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities."

Add this to the fact that employers must show that they will pay the "prevailing wage" to H-1B workers and we begin to see the advantageous nature of the H-1B program. U.S. employers are under immense pressure to maintain profitability in the wake of the greatest economic downturn since the great depression. Competition is fierce both domestically and abroad. Hiring the best international talent vis-a-vis the H-1B visa program to work at U.S. companies to implement sophisticated company policy and procedures will keep the U.S. economy in first place among the world's major players. It enables companies to stay in the U.S. and hire support staff to see that these policies and proceedures and carried out. A U.S. labor market with high numbers of H-1B workers will ultimately grow the economy by increasing wages and reduced unemployment.

Continue reading "Columbus H-1B Immigration Lawyer: Do H-1B Workers "Undercut" Wages and Steal Jobs from U.S. Workers?" »

The City of Columbus took a bold move and passed a non-binding Resolution to urge Congress to pass Comprehensive Immigration Reform. The following is a verbatim testimony of Attorney Gus M. Shihab before City Council on June 21, 2010 in favor of passing this resolution.

The following is attorney Gus Shihab statement:

President Pro Tempe Craig, Councilwoman Tavares, Honorable Members of the Columbus City Council and Distinguished Guests.

My name is Gus Shihab. I have been an attorney in private practice here in Columbus, Ohio for more than 17 years. My area of practice is immigration and nationality law. I have represented thousands of clients during my career in all facets of immigration law. I also hold the position of Ohio Chapter Chair for the American Immigration Lawyers Association (AILA). I would like to tell you a little about AILA. AILA is a national bar association of immigration practitioners having 11,000 members nationwide. In our Ohio Chapter, we have about 240 member lawyers; about a hundred of those member lawyers are located in Columbus. Collectively, our member lawyers represent several thousands of immigrants and their families.

President Pro Tempe Craig, Ohio is home to 350,000 foreign born individuals. In Columbus, ten percent of our City's population is composed of foreign born individuals compared to only 4.5 percent in Cleveland and 3.8 percent in Cincinnati. This comes as no coincidence as the City of Columbus has proudly stood tall among its sister cities not only in Ohio, but also nationwide as an example for ethnic diversity.

I Thank City Council for passing this non-binding resolution which will accomplish two things: 1) it will send a clear signal to Congress that the Citizens of the great City of Columbus demand Comprehensive Immigration Reform which reinforces our longstanding American tradition of fairness and family unity; 2) remind Senator Tim Grendel of Cleveland, who recently requested the Ohio Senate to join him in drafting ethnic profiling legislation molded after Arizona's SB 1070, that the Citizens of the City of Columbus will not join in.

Members of the Columbus City Council, I would like to remind you of the demographics of foreign born individuals living in our midst. They are persons who have come to Columbus to be united with their loved ones or to find a better future for themselves and their families. They are two types, some come in through legal means and others enter the United States without inspection. The latter population we call the undocumented immigrants. But these undocumented immigrants mostly entered as unskilled workers to occupy position in the dairy, agricultural, construction, and hospitality industries. They provide badly needed services in a segment of our labor market that US workers are either unwilling or unavailable to occupy.

I see these individuals in my office frequently and without exception, every one of them wants to be documented but our current immigration laws do not allow them to do so for the most part. This is because our current immigration laws do not have a category for unskilled laborers that can be utilized in a scale as dictated by the market place. In essence the immigration laws' failure to recognize the demand that we have for unskilled labor has placed these individuals in a catch 22: they were attracted to our communities through the natural forces of supply and demand and are now denied the opportunity to be in the US legally.

Members of Columbus City Council, I thank you for passing this resolution demanding that Congress pass Comprehensive Immigration Reform through earned legalization:
• Achieve Economic Benefits Through Immigration Reform
• Address the Situation of Unauthorized People Living and Working Here
• Create and Control the Future Flows of Foreign Workers
• Improve Family and Employment Based Permanent Immigration Programs.
• Implement Smarter Enforcement Strategies.
• Restore Fairness, Due Process, and Humanity to Immigration Courts and Detention Centers
• Support the Public's Will for Immigration Solutions

It has been documented that immigration reform will improve the US economy as the population of undocumented immigrants will invest into America by buying homes, cars, property and other goods. A study conducted by UCLA Comprehensive Immigration Reform will increase the Gross Domestic Product (GDP) over 10 years.
I thank you for your efforts in passing this resolution and I will be more than happy to answer any questions.

Does the USCIS need a performance review before we can approve its increase in filing fees? Tell the USCIS: "You have shown poor performance and hence you do not deserve a pay increase!"

The USCIS announced in the Federal Register yesterday that it plans to increase the filing fees by approximately 10%. This measure, the USCIS states, is necessary to bridge the gap between operational cost the USCIS has faced during the past two years and revenues generated by the filing fees. The statement also says that 90% of USCIS's income comes from filing fees and that the remaining 10% is generated through Congressional funding.

I cannot help but to stop and scratch my head as I read the USCIS's announcement. I believe it is only fair to ask the USCIS officials to sit down and discuss their performance during the past two years and to find out whether there is another alternative to increase USCIS' revenues short of increasing the filing fee. It would appear to be a reasonable thing to do with anyone you do business with. In other words, when you have a business relationship with another individual, and they come to you and say: "I need more money," that you would want to know why. Why is this person now asking you to pay them more money? Is it because of their cost has increased? Or is it because you are not paying them "enough money?" If you are not paying them the same amount of money that you used to pay them in the past which has caused them to experience economic hardship then it would follow that perhaps their performance was lacking. Or perhaps you did not need their services as much as you did in the past.

I am trying to perform a logical analysis to the fact that the USCIS is experiencing a significant loss of revenues. Could it be because the USCIS's recent arbitrary and frequent denial of petitions for highly skilled workers who could energize the economy that is causing a chilling effect on businesses to such international skilled labor? Could it be the USCIS' unreasonable issuance of requests for evidence and the seemingly deliberate pursuit of driving small businesses who employ international skilled workers out of business that is causing the loss in filing fee revenues? Or could it possibly be the USCIS' incredible adjudication delays and denials of immigrant petitions filed by scientists and companies that may be discouraging others from seeking immigration to the United States that has caused the drop in petitions, and hencevenues?

There can be no doubt that the USCIS' has recently and significantly departed from administering the immigration laws in a manner that is consistent with long-standing statutory interpretations and has literally gone down a path that it created on its own. The USCIS' departure comes at a time when the United States needs help the most. Recovering from the US recession could be accomplished by increasing the world's confidence in our economic system. America needs international investors, scientists, innovators to help lift it out stagnancy into economic mobility. Many studies have shown that there is a direct correlation between the presence of highly skilled workers and United States and innovation. Innovation leads to jobs. Jobs lead to economic mobility. Economic mobility leads to liquidity which will help recovery from recession.

Hence when the USCIS comes to us asking for more money, we must tell it a big fat "no." You have not, USCIS, done your job in the last two years. If you want more money USCIS you will have to return back to more reasonable stance on immigration; get rid of the Neufeld memo; do not cause small businesses to run to bankruptcy court; issue more reasonable adjudication posture towards EB-1, EB-2, and those of visa categories which will lead to the injection of additional capital in the US economy. Once you do those things USCIS you will not need to increase the filing fees, because of the worlds will want to come back to America. When the world decides to return to America they will not only invest in to America but they will also pay you USCIS to help them settle in the United States. You do not deserve to receive a pay raise USCIS!

This article is an H-1B case study of concurrent H-1B filings. Here's the situation: a hypothetical H-1B worker currently works for a cap-exempt H-1B employer (Company A) and wishes to transfer her visa to a cap-subject employer (Company B) while maintaining employment at Company A. Company B files and obtains an approval of an H-1B cap petition to begin work on October 1, 2010. The question arises: when can the H-1B worker begin work with company B? Can she start immediately or does she have to wait until Oct. 1? What happens if she begins working at Company B before her petition is approved? If she begins working at Company B, does she have to withdraw her H-1B petition for company A?

Issue: Whether an H-1B beneficiary may continue to work for a cap-subject employer, after the H-1B petition has been adjudicated and approved, prior to the stated work period that commences on a future date of October 1 in the H-1B petition.

The Portability Rules for H-1B Employment
The H-1B visa allows workers to be employed by several employers concurrently, e.g., an accountant employed by Company A who also performs consulting work for Company B. If the H-1B worker has H-1B status from Company A and will continue to work for Company A while commencing new employment for Company B, then Company B must file an H-1B petition requesting extension of H-1B status of the worker. Under the H-1B portability rules, the H-1B alien worker is allowed to begin working for Company B as soon as the petition has been filed. This is advantageous as there is no requirement that the H-1B worker needs to wait for the actual approval of the H-1B petition. The H-1B worker may engage in part-time employment Company B so long as the LCA states that the position is part-time, assuming that the position is still a specialty occupation requiring a relevant bachelor's degree or foreign equivalent.

Hypothetical Scenario: Concurrent H-1B Employment
An H-1B beneficiary with an approved H-1B visa with a cap-except Company A has a validity date from say May 15, 2010 until May 14, 2013. The worker was not subject to the annual H-1B cap. The annual H-1B cap is set at 65,000, with an additional 20,000 visas for advanced degree graduates of U.S. universities. The law exempts nonimmigrant workers from the annual cap if they are employed or has been offered employment at an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 .

Company B has offered the H-1B employee a position with the company as an Accountant (a qualifying specialty occupation). Company B recently submitted an H-1B petition on behalf of the beneficiary with a start date of October 1, 2010 at the start of the 2011 fiscal year, since the beneficiary is now subject to the annual cap going from a cap-exempt organization (Company A) to Company B, a cap-subject employer. Company B's H-1B petition filed on behalf of the beneficiary is now approved by the USCIS.

The so-called portability provision under the law provides continued employment authorization to the beneficiary of an H-1B petition, who is working at the cap-exempt organization and whose employment period is covered by a valid LCA beyond October 1, provided that he/she meets all other requirements under the portability provision as set forth under the law. Meeting these conditions, the beneficiary may begin employment upon the filing of the petition with the cap-subject employer.

Such employment authorization continues until the new H-1B petition is adjudicated. Meeting all of the conditions under the applicable law, an H-1B visa holder may transfer employment once the new employer files on behalf of the H-1B candidate. This ability to port is a temporary benefit bestowed on the H-1B beneficiary under the law but does not confer H-1B status to the beneficiary. Hence, employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.

While it is clear that if the petition is denied, the employment authorization ceases. The question arises, however, what happens when the petition is approved? The portability provision does not specifically provide an answer to this question.

Can the H-1B Employee Work for Company B Upon Approval?
In fact, the question was specifically brought up in a string of correspondence between Ms. Naomi Schorr with Kramer Levin Naftalis & Frankel, LLP and Mr. Efren Hernandez III of the United States Citizenship and Immigration Services ("USCIS") during 2007. In her letter dated April 27, 2007, one of the issues on which Ms. Schorr sought clarification from the USCIS was whether the H-1B beneficiary who has ported from a cap-exempt institution to a cap-subject employer, whose H-1B petition with the new employer has been approved and who meets all the conditions the law, could continue to work prior to October 1. In his reply letter dated May 23, 2007, Mr. Hernandez answered in the following:

"As you note, section 214(n) provides employment authorization until the H-1B petition is either denied or adjudicated. Congress appears to have not contemplated a situation in which H-1B status would not be immediately conferred upon the portability worker upon approval of the H-1B petition. By addressing the result of a denial but not an approval Congress seems to have assumed that the alien would immediately be covered by the approval and would no longer require the employment authorization conferred by 214(n), and thus drafted 214(n) so that the employment authorization it provides ends upon "adjudication." I agree that a result in which an alien with a pending petition is in a better situation than one with an approved petition makes no sense. A reading of 214(n) such as the one you suggest that continues employment authorization until H-1B status is available is a logical one, and USCIS will explore this position in future rulemaking."

Based on this string of correspondence, according to Mr. Hernandez it would be absurd to reach the decision that once the petition becomes approved, the H-1B beneficiary would have to stop working until October 1, when new H-1B numbers become available. Such a conclusion would seem to defy logic.

Meeting all of the conditions under the law, the H-1B beneficiary may work for Company B prior to October 1, provided that a new LCA is submitted that would cover this period from now until the start of the next LCA period in the H-1B application, i.e., October 1st.

Continue reading "Columbus Immigration Lawyer: H-1B Portability and Concurrent H-1B Visas" »

The American Immigration Lawyers Association ("AILA") posted on its website processing times for the Administrative Appeals Office, the AAO. The AAO has authority to review certain applications denied by the US CItizenship & Immigration Service ("USCIS"). Decisions issued by the AAO have been controversial as the USCIS may or may not be bound by them as a "legal precedence" or "lawmaking authority" as the American legal system normally operates. Hence, practitioners in the field of immigration law have found the administrative appeals before the AAO as futile and time consuming process. Nonetheless, applicants and petitioners whose cases have been denied by the USCIS have the legal obligation to "exhaust their administrative remedy" before taking their cases to Federal Court to challenge the USCIS' denial. In other words, the Federal Court system may not accept a challenge to a USCIS decision prior to having them try to resolve the matter before the AAO. Hence, the AAO appeals step is viewed by many as a necessary step, though time consuming.

Below, please find the most recent AAO Processing Times. As can be seen, it may take more than a year to review an H-1B visa case denial. An EB-2 or EB-3 I-140 denial may take 2 years to appeal before the AAO. In comparison, an alien entrepreneur petition form I-526 denial will take 6 months to appeal before the AAO.

Continue reading "Columbus Ohio Immigration Lawyer on Administrative Appeals Office - AAO Processing Times As of May 1, 2010" »

This article provids summary of a new decision issued by the Board of Alien Labor Certification Appeals ("BALCA") affirming the denial of an application for PERM Alien Labor Certification.

On June 3, 2010 BALCA issued a decision in which it confirmed to US employers that even small seemingly harmless errors will cause the denial of a PERM application. In this specific case, also known as In Re-Soon Pal Known, case 2010-PER-00056, the employer filed an PERM Alien Labor Certificate Application with the Atlanta Processing Center. The Certifying Officer issued an audit request pursuant to regulations. According to USDOL most recent releases, thirty seven percent (37%) of all PERM applications are subject to such audits. USDOL audits are intended to test, sometimes on a random basis, whether the employer complied with the formalities of pre-filing recruitment activities pursuant to regulations. When the employer provided the documentation responsive to the audit request, it also included proof of recruitment in connection with the application itself.

It is worthy to review the recruitment activities which must precede the filing of a PERM application for a professional position: pursuant to regulations, the employer must engage all of the following recruitment activities prior to filing: 1) advertising the position in a newspaper of general circulation in the geographic area of the worksite; 2) posting a job order with the state workforce agency having jurisdiction over the place intended employment; 3) engaging in three from 10 alternative recruitment steps listed in regulations; and 4) posting an internal notice of the filing of an application for alien labor certification. The regulations under 20 C.F.R. § 656.10(d)(3), require the employer to list specific items in the internal notice including the address of the Certifying Officer which complaints may be sent to by US workers if they have a belief that the employer is engaging into questionable practices in the employment of foreign labor. Hence, the internal notice must include the following precise language:

This notice is being posted in connection with the filing for permanent alien labor certification. Any person may provide documentary evidence bearing on the application to the Certifying Officer of the Department of Labor at the following address: Attn: Certifying Officer, Atlanta National Processing Center, Harris Tower, 233 Peachtree Street, N.E., Suite 410, Atlanta, Georgia 30303.

The employer Soon Pal Kwon, complied with all of the above listed recruitment steps, including posting of the internal notice. Furthermore, the employer complied with all regulatory directives relative to the content of the internal posting notice and did in fact list the address of the Certifying Officer in the internal notice. The employer's mistake was that he included one more address on such internal notice. The additional address was for the state workforce agency. Hence when the employer responded to the audit request it provided a copy of the internal notice which had the additional address included therein. The Certifying Officer denied the application on the basis that the internal notice did not comply with the regulatory requirements.

The employer filed an appeal and argued that it had complied with every requirement listed in section 656.10(d)(3) of title 20 Code of Federal Regulations. The employer also stated that inclusion of the additional address is harmless error since the address of the Certifying Officer was listed. The Certifying Officer argued that prior case BALCA case law stated that state workforce agencies may not be used as a conduit to transmit documentation to the Certifying Officer. BALCA decision mirrored the Certifying Officers argument and stated that its prior decision in Hawaii Pacific University have determined: "it is simply unreasonable for petitioning employers to put the burden on the state processing unit to redirect communications about labor certification applications from workers are members of the public when the regulations direct employers to put the proper address on the Notice of Filing in the first instance." In affirming the decision of the Certifying Officer, BALCA relied on the Hawaii Pacific University case concludes that the employer's inclusion of an additional address which had no jurisdiction over the adjudication of the PERM application was "inexcusable."

Continue reading "Cleveland Ohio Immigration Lawyer: BALCA Decision Update: In Re Soon Pal Kwon Denial of PERM Application Upheld Because Employer included SWA Address on Internal Notice" »

Almost all foreign nationals who seek permanent residence, commonly known as a Green Card, through the employment based avenues of permanent immigration must test the local job market via the PERM process. However, for foreign nationals holding a master's degree or a bachelor's plus five years of experience, there is a little utilized waiver of the requirement that the job market be tested by the expensive and time consuming PERM process. For certain highly educated foreign nationals whose area of expertise holds substantial intrinsic merit and the effect of their work would be national in scope, a National Interest Waiver of the PERM process may be available.

Requirements of a National Interest Waiver (NIW) of the PERM Process

The National Interest Waiver has the effect of bypassing the PERM process and placing the potential applicant directly into the I-140 stage of the Green Card process under the EB-2 preference category. While skipping the PERM process is beneficial for all foreign nationals applying for employment based permanent residence, foreign nationals from countries other than China or India will find themselves with a Green Card immediately available upon approval of an I-140 under EB-2. Additionally, foreign nationals from China and India can enjoy the faster processing time of the EB-2 preference category and the peace of mind that the job market does not need to be tested in this economy before they can apply for an employment based Green Card.

Who Qualifies for the National Interest Waiver?

Because of the obvious benefits of the National Interest waiver, the requirements that need to be met are rather stringent. First, the applying foreign national must possess at least a master's degree or its equivalent (Bachelor's plus five (5) years of experience). This educational requirement is the same for all second preference employment based petitions.

Secondly, the foreign national must meets the standards established by the Government that show the foreign national should be allowed to skip the PERM process in the national interest. The controlling case on this issue is the Matter of New York State Department of Transportation 22 I&N Dec. 215. In this case, the court defined three threshold criteria to be met in order to qualify for a National Interest Waiver. A successful argument of all three NIW threshold requirements will establish that the alien is not merely "exceptional" as all EB-2 applicants are, but rather that the aliens skills and achievements "greatly exceed" those of other aliens and similarly educated American workers.

Area of Endeavor Must have Intrinsic Merit: This means that the job that the alien will do must be in a field that has high importance for the national economy or security.

The Proposed Benefit will be National In Scope: This means that the benefits of the foreign national's labor must not be limited to a single geographic area. The effects of the alien's labor must be felt nationally.

The National Interest would be Adversely Affected if the Alien were not Hired: This requirement means that the national interest of allowing the Alien to skip the PERM process and be hired immediately would outweigh the national interest of protecting the jobs of American workers.

As simple as the above requirements seem, it takes a great amount of effort to mount a successful argument that a foreign national deserves to skip the PERM process. Support of the employer is a great importance as well. Common situations that may lead to a successful result include research positions, governmental security positions, complex engineering positions, high ranking business positions and even positions in coaching or music. Every applicant for a NIW must be a step above others with exceptional ability. While there are certain guidelines that can be followed to geach case must be evaluated on its own merits.

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H-1B Question: Can an H-1B Employer legally recoup by way of payroll deductions or otherwise the costs (whether they were expended for attorney fees or filing fees) it will incur in sponsoring or extending the H-1B alien's nonimmigrant H-1B petition?

The Law: Department of Labor Regulations
The US Department of Labor ("USDOL") regulations allow the H-1B employer to deduct certain expenses related to insurance, etc. Under Federal Regulations, all other deductions must meet each of the following criteria to be considered "authorized" under the USDOL rules: (1) the deduction must be reported as such on the employer's payroll records; (2) the H-1B worker must have agreed to the deduction in writing and such agreement must have been entered into voluntarily (the mere acceptance of a job which carries a deduction as a condition of employment does not constitute a voluntary agreement); (3) the deduction must be for a matter that is principally for the benefit of the employee; (4) the deduction is not a recoupment of the employer's business expense; (5) the amount deducted does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and (6) the amount deducted does not exceed 25% of the employee's disposable earning.

Housing and food allowances are examples of deductions that usually are principally for the benefit of the employee unless the employee is traveling on the employer's business. The rules also permit deduction of the cost of transportation from and to the alien's home country at the beginning and end of the assignment, unless the employer is liable for the cost of return transportation because it has terminated the H-1B worker. Translation and visa application fees associated with the case may also be lawfully deducted (such expenses are not considered the employer's business expense). The value of "in-kind" benefits, such as the value of a car, apartment, parking space, may also be lawfully deducted, provided each criteria is satisfied.

Matters that are considered impermissible deduction for the employer's "business expenses" include the following: (1) the cost of tools and equipment; (2) travel expenses to and from off-premises assignments; (3) living expenses when the employee is traveling on the employer's business; and (4) attorney fees and other costs associated with the preparation and filing of the LCA and H-1B petition (not including translation and visa application fees). Matters that do not meet each of the five criteria listed above are considered unauthorized deductions.

In one of the first enforcement actions involving this provision, the DOL found that a company owed three of its H-1B employees compensation for the judgment amounts assessed against them for the $5,000 "investment fee" that the company sought to recoup when the employees resigned after less than one year of employment. USDOL v. Novinvest, LLC, 2002-LCA-24 (Jan. 21, 2003). The DOL argued that the $5,000 fee, purported to be a business expense used to "hire, train and process" the employees, was in fact an early termination penalty, which is not authorized. Analyzing state law, the Administrative Law Judge stated the company would have to satisfy two tests in order for the $5,000 "investment fee" to be an allowable deduction from the employees' wages. First, the company would have to show that the employees agreed to the policy that included the fee, the fee was intended to benefit the employees, the fee was not used simply to recoup the company's business expenses, the fee did not exceed the cost of the expenses covered, and the fee did not exceed federal limits set on the garnishment of wages. Second, the company would have to show that the fee represented liquidated damages according to state law.

H-1B Visa Costs
Federal Regulations expressly prohibits an employer from deducting from an employee any of the costs associated with the preparation and filing of an H-1b visa for an employee. An alien may pay for some of the filing fees and all of the attorney fees prior to the commencement of the employee/employer relationship. This is because the employer is only prohibited from deducting such fees and expenses after the commencement of the employee/employer relationship. However, prior to the commencement of such employer/employee relationship, the employer could pay for all of the attorney fees, the I-129 filing fee and the fraud fee of $500. Even prior to the commencement of the employer/employee relationship, the employer must pay for the H-1b visa filing fee.

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