Immigration Visa Lawyer Blog

In face of layoffs, most employers shy away from filing PERM applications under the erroneous perception that the PERM regulations prevent them from doing so. This article discusses the consequences of layoffs and processing PERM labor certification applications; it also discusses the employer's legal obligations in proceeding with the PERM application process despite recent layoffs.

I. PERM and Layoffs

The collapse of the financial infrastructure in the US has had a Domino effect on every sector in our economy. As a result, many organizations find themselves in economic crisis which resulted in massive layoffs almost in every aspect of our workforce. Notwithstanding layoffs, organizations still desire to process permanent labor certificate applications on behalf of certain foreign national professionals. PERM regulations, however, place certain restrictions on organizations and firms which experienced layoffs that could prevent them from taking advantage of this program.

II. History of the PERM Process

PERM stands for Permanent Electronic Review Management introduced by the US Department Labor in March of 2005 to replace the prior process which had been in existence since the 1980's. The regulatory directives of the PERM process evolved from a predecessor process called Reduction In Recruitment ("RIR"). Even though PERM regulatory provisions have their roots in the prior RIR process, RIR itself was an ad hoc administrative procedure introduced by the USDOL during the Y2K era. At that time, there was a documented shortage of certain professionals in the information technology filed which necessitated an agile administrative process for the permanent employment of certain foreign professionals. Hence, RIR was a modification of a prior process known as "supervised recruitment" for labor certification which was truly an administrative nightmare including overlapping steps between the State Workforce Agencies ("SWA")and the US Department of Labor. The SWA's approved the recruitment language and mode of recruitment and supervised all the resumes received throughout the recruitment process itself. It took more than 2 years to process a Labor Certificate application prior to the introduction of RIR. The most important aspect s of RIR process that survived the PERM regulations are the idea that all recruitment for the labor certificate application must precede the filing of the application itself.

III. Current Regulatory Directives and Layoffs

PERM regulatory provisions under 20 CFR §656.17(k)(1) require employers to provide notice and to consider all similarly situated U.S. workers which it had laid off within the same geographical area in the six months immediately preceding the filing of the labor certification. Put in different words, an employer may not successfully file a labor certificate application unless it engages in a specific process for consideration of all qualified US workers which it had laid off in the six months prior to filing the labor certificate application on behalf of a foreign national for a particular occupational classification. This process is intended to prevent US workers from dismissing US workers and replacing such US workers with foreign labor who are perceived to accept less favorable working conditions and compensation. This specific regulatory provision was not necessarily mandatory in the pre-PERM rules governing the RIR process. However, the Certifying Officer had authority to deny or remand the labor certificate application for additional recruitment if he believed that the specific occupational classification experienced layoffs within the geographic area. Hence, it is important to note that the current regulatory provision is an extension of the prior position the US Department of Labor had regarding layoffs.

It is important to remember that the PERM regulations have two important criteria that must be examined more closely. If there have been layoffs in the geographic area in the occupational classification that is the subject of the labor certificate application that the employer must notify and consider all qualified US workers who had been laid off within the prior six months. It is thus critical to understand in great detail what is considered layoff, the geographic area, and the particular occupational classification.

IV. Layoffs Defined in the PERM Regulations

The definition of layoff is rather expansive and it includes any involuntary separation of one or more employees without cause or prejudice. Any such separation that is characterized as "attrition," "reduction in force," "downsizing" or "restructuring" which results in the loss of US workers without cause is covered as layoffs pursuant to USDOL directives.

V. Occupational Classification Defined

In analyzing the effect of company layoffs on the manner in which the PERM application should proceed and in deciding whether the employer has an obligation to "notify and consider" qualified US workers who had been laid off in the six months prior to the filing of the PERM application it is important to understand how the regulations define the same occupational classification. If the employer is able to distinguish the occupational classification on which the PERM application is based, then it will not be subject to the "notify and consider" requirements. The regulations define an occupational classification is rather expansive, however. More specifically, the regulations focus on the "majority of the essential duties" not necessarily on the title of the position in question to determine whether the position giving rise to the PERM application is the same or "related" occupation. If comparison of the majority of the essential duties between the occupation for which PERM is sought are the same or similar to position wherein a US worker was laid off within the prior 6 months, then the employer is required to "notify" and "consider" US workers who were laid off within the six months prior. On the other hand, if the comparison between the position on which the PERM application is based and those of the laid US workers yields a significance in the majority of duties, then the employer is absolved from notifying or considering any US workers who had been laid off within the prior six months.

Example.

ACME Insurance Company is desirous to file a PERM application for a Programmer Analyst who works in its IT Department in the Washington DC. The immigration counsel was advised that the company laid off 150 employees within the last 90 days. The immigration counsel was concerned whether these employees need to be notified considered pursuant to regulations since they were laid off within the last six months. Upon examination of the position description of these laid off employees, it was discovered that they all were call center operators and not connected in any manner to the information technology field. On that basis, the immigration counsel determined that the "notify and consider" provision of the regulations does not apply.

It is for that reason that qualified and skilled immigration counsel should be consulted to make certain that the position giving rise to the PERM application is not considered similar or related to any potential position that has been or may be subject to layoff. It is that kind of planning that could make or break a PERM application in the face of today's layoffs.

VI. How Does the Employer Effectively "Notify and Consider" Laid Off Workers?

As mentioned, under PERM regulations, the employer wishing to file a PERM application for a foreign national whose job duties are similar or are related to that of US workers who were laid off or terminated without cause within the six months preceding the filing of a labor certificate application, must notify and consider such qualified US workers for the specific position. But what constitutes acceptable norms of notification and consideration? The answer is not clear in the regulations as they do not specify how the employer is required to notify such laid off US workers. The American Immigration Lawyers Association attempted to find out through liaison communication as to what the USDOL considers sufficient forms of notification. Would email, phone calls, or other forms of written communication suffice? The USDOL had not responded in approval to any of the aforementioned methods. Hence, it continues to be a mystery as to what constitutes proper notification methodologies. Competent immigration counsel will make certain that the employer documents every conceivable mode of communication with US workers to make certain that its attempts are considered within the realm of "good faith recruitment efforts" which underlie the PERM process.

Continue reading "Immigration Lawyer in Columbus, Ohio Re: PERM Processing in An Envorenment of Layoffs" »

In a well reasoned order handed down by Judge Susan R. Bolton of the United States District Court for the District of Arizona, the most unreasonable, atrocious and unconstitutional aspects of Arizona's Senate Bill 1070 were blocked, or rather, enjoined from taking effect with the remainder of the legislation on July 29, 2010. In what almost certainly will set the stage for an appeals process culminating in review of state government's power to supplement federal law in the area of immigration, Arizona has appealed this ruling to the United States Circuit Court for the Ninth Circuit. If the Ninth Circuit rules on the matter before the end of the year, the case could be heard by the Supreme Court of the United States in its next session, and possibly decided within a year from now.

While the most egregious aspects of SB1070 have been strategically excised from the whole of the bill by the order of Judge Bolton, the bill ultimately stands and the remaining portions went into effect July 29, 2010. Because the process for enjoining and appealing this bill as well as its ramifications may not be entirely clear, I have briefly summarized the judge's legal opinion and the effects that this ruling has on SB1070 in board terms. As a reminder, this attorney and the Law Firm of Shihab & Associates has offered the following aspects of Arizona law for the purposes of public discussion and discourse only. This lawyer does not suggest nor insinuate that he is licensed practice civil or criminal law in the state of Arizona.

Summary

Senate Bill 1070 took effect in Arizona on July 29, 2010. Judge Susan Bolton only blocked certain parts of the bill from taking effect with the rest of the bill. Such a legal challenge and outcome was fully anticipated by the drafters of SB1070, who made certain aspects of the bill severable, or able to be separated, without destroying the entire bill. The US Department of Justice, the adversary to SB1070 in this instance, specifically chose certain aspects of the bill to challenge, leaving other aspects unopposed. Some of the most important aspects of SB1070 that remain in effect or fully enforceable by officers in Arizona are as follows:

• Provision allowing residents of the state to sue any state official or agency that restricts enforcement of federal immigration law to any extent less than the maximum allowed by federal law;
• Creating a crime for stopping a vehicle to pick up day laborers if the stopping creates an impediment to normal movement of traffic;
• Creating crimes for intentionally or knowingly employing unauthorized aliens; and
• Transporting or encouraging unlawfully present aliens to come to Arizona.

Interestingly, law enforcement officers and public employees are caught in a catch 22 situation regarding their role in Arizona's immigration scheme. Specifically, all agencies of the State of Arizona are required to carry out federal law in regard to federal immigration rules or risk being sued. However, it is reasonable to believe that most employees of the state of Arizona are not experts in Federal Immigration law, leaving such agencies and employees potentially open to suit for actions they do not know are unlawful.

The following are aspects of the bill that have been enjoined, or stopped from enforcement, by the federal court:

• Requirement that under reasonable suspicion of unlawful presence in the United States, that police officers make a reasonable efforts to ascertain the immigration status of the person, and ascertain the immigration status of a person upon release from arrest;
• Creation of a crime for failure to apply for or carry immigration papers;
• Create a crime for an unauthorized alien to solicit, apply for or perform work; and
• Authorize the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable (formerly called deportable) from the United States.

Despite the injunction of this law, there are aspects of the enjoined portions of SB1070 that seem to have overlapping effects with current law enforcement procedure in Arizona. Sheriff Arpaio of Maricopa County (the Phoenix metro area) of Arizona is still conducting his "sweeps" pulling over cars for minor violations and then taking the opportunity to lead the detained person down a path of questioning to eventual disclosure of his or her immigration status. While it is unclear where to draw the lines between enforceable state law and unenforceable enjoined provisions of SB1070, what is clear is that violating a federal injunction is grounds for a charge of contempt of court. In the spirit of SB1070, it is only just that such a person violating an order handed down by a federal judge should be prosecuted to the full extent of the federal law.

Discussion of the Enjoined Sections of SB1070

The legal ruing handed down by the federal court in this case is what is known as a preliminary injunction. This order stops conduct from being carried out as requested by the moving party from occurring while the merits of the case have yet to be decided, i.e. the case has not yet gone to trial. This is essentially a temporary stop. The ruling on a temporary injunction may be appealed to the next highest court. This is the action that the State of Arizona has taken, asking the Ninth Circuit, the court above the US District Court for Arizona, to hear its argument.

Judge Bolton took the most appropriate action by only enjoining or blocking the aspects of the bill that were likely be won by the US Department of justice at trial, while letting other aspects of the law go into effect. The drafters of SB1070 intentionally wrote the bill to allow this type of severability, or the ability for sections of the law to be blocked without destroying the entire bill. As a consequence, Judge Bolton has essentially narrowed the issues that will be argues at the next level to the issues below.

Continue reading "The Most Appalling and Unconstitutional Aspects of Arizona's SB1070 Blocked by Federal Court" »

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" »

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" »

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.

Continue reading "Columbus Immigration & Visa Lawyer Discusses a Waiver of PERM Process for purposes of the National Interest" »

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.

Continue reading "Columbus H-1B Immigration Lawyer: Payroll Deductions for H-1B Workers" »

The Board of Alien Labor Certification Appeals ("BALCA") in Little Thai Kitchen, II affirmed the Certifying Officer's denial of a PERM application filed for a "Chef" position because the advertisement failed to specify the identity of employer.

In Little Thai Kitchen, II When advertising, the employer, had directed potential US Worker applicants to transmit resumes via facsimile to the attention of the owner "Natarajan." The US Department of Labor's Certifying Officer ("USDOL CO") issued a letter auditing the PERM application. The employer submitted a proof of the advertisement showing the name of the employer missing. The Certifying Officer thereafter denied the application citing the reason that the employer's name was missing from the advertisement. The employer appealed the denial to BALCA.

The employer stated that notwithstanding the assertion by the USDOL CO, the employer's name was listed and that the facsimile number belonged to the employer. Furthermore, the employer argued that it was "harmless error." BALCA rejected the employer's argument stating that a review of the regulatory history of the PERM rules indicate that the employer's name in the advertisement must be shown for the following reasons: (1) to enable potential applicants to better determine whether they wish to apply for the job; (2) to address the possibility that some applicants
would not apply to a blind advertisement; and (3) to assist the CO in matching the
advertisement to the position in question in the event of an audit.

BALCA further reasoned that even though the advertisement had directed applicants to send resumes via facsimile to Mr. Natarajan, it had not stated that he was the President and CEO. There was no way for the USDOL CO to determine whether applicants were deterred from submitting a resume because the advertisement appeared to be a blind. BALCA also stated that it would be burdensome for the USDOL CO to investigate the impact of the absence of the employer's name on the effectiveness of the advertisement for PERM application purposes. For all of the above, BALCA affirmed the denial.

This case emphasizes the experience required to effectively file an approvable PERM application. Approval of a PERM application may very well hinge on a seemingly very minor requirement. In this specific case not only did the employer expend time and effort and resources in filing the initial PERM application, not to mention attorney fees and costs, but also expended a 36 month waiting time between initial processing times, audit review time (which was estimated at 20 months), and eventual appeal only to find out that the entire application was denied because of the employer's failure to adhere to a very simple requirement: including the employer's name in the advertisement.

Continue reading "Columbus, Ohio Immigration Lawyer Provides Update: BALCA Affirms Denial of PERM Application where Ad Did Not Show Employer's Name" »

A popular alternative to the H-1B and L-1 visas for Canadian or Mexican nationals is the TN Visa. This visa allows temporary immigration to the United States for persons from Canada or Mexico who hold a baccalaureate degree or appropriate level of credential status, qualifying them as a professional. This visa has several advantages over other available options for citizens of the NAFTA treaty countries over and above the benefits of H-1B or L-1 visas. Due to the specialized documentation needed in order to properly apply for a TN visa, the representation of an experienced immigration attorney is recommended when applying for TN visas.

Qualifications

The TN visa is based upon the NAFTA treaty signed by Canada, Mexico and the United State. The purpose of this visa is to allow for the mobility of professionals between the three countries in recognition that the common borders of the NAFTA signatories lend themselves to multinational business across their shared boundaries. Therefore, professionals holding a baccalaureate degree or equivalent credentials may be eligible to apply, including those citizens of Canada who graduated from a three year degree program.

There are various statutory requirements that need to be proven in the TN visa petition. Generally, it needs to be shown that the applicant is indeed a citizen of Canada or Mexico and that he person is indeed a professional. Proof of a professional and lawful work engagement requires the careful drafting of a letter, explaining the purpose and length of stay.

Advantages of the TN Visa

There are several advantages of the TN visa over other the L-1 or H-1b visa:

1. There is no statutory limit on the length of stay in the United States;
2. A four year baccalaureate degree is not a hard line requirement, equivalency to a baccalaureate degree may be shown;
3. A three year baccalaureate degree may be used to meet the educational requirement in certain situations;
4. Part time employment is permitted;
5. Change of job location with the same employer does not necessarily require the filing of a new petition;
6. TN Visas may be processed at the port of entry instead of the central USCIS processing facilities;
7. The petition does not require the filing of an LCA.

There are two main drawbacks for the TN visa that need to be taken into consideration before applying:

1. There can be no dual intent for TN visa holders. This means that a TN visa holder will run into trouble in obtaining a Green Card while on TN visa status. There are also side effects of the "no immigrant intent" rule for TN visa holders, such as the inability to obtain in-state tuition in the US;
2. No Self Employment: TN visa holders cannot work for a company in which they hold an interest.

Continue reading "Columbus Immigration Visa Attorney Discusses the TN Visa for Canadian and Mexican Nationals Engaged in work Activities at a Professional Level" »

This articles provides guidance in understanding common issues involved in the H-1B visa extension. The main topics of discussion will be: the "240 day rule" for timely filed H-1B extensions, travel while H-1B extension is pending, and H-1B extensions beyond the six year limit.

H-1B Extensions:
The H-1B visa allows a foreign national to remain in the United States temporarily for a total period of up to six years in H status (with possible extensions). The H-1B visa is approved in three year increments. The H-1B visa extension can be filed by anyone currently in H-1B status in the United States and currently employed by a U.S. employer. An H-1B extension can be filed up to six months (180 days) prior to the expiration of their current status. It is currently taking USCIS approximately two (2) full months to adjudicate H-1B visa extensions. Thus, it is advisable to file the extension as early as possible within the 180 day period. Often times however, H-1B extensions are filed very close to the expiration date (i.e., less than two months) which creates a sort of "gap" in valid status. While this appears to be a problem, Federal Regulations offer a solution, which is discussed below in the "240 Day Rule" section. Finally, H-4 dependents (spouses and children of the H-1B visa holder) must have their status extended as well. Their petitions will be filed concurrently with the principal beneficiary.

The "240 Day Rule":
Occasionally, an H-1B extension is not filed until very close to the H-1B worker's expiration of status. If the expiry date is close, the H-1B worker may feel anxious that his/her visa may not be renewed before the expiration of their current approval notice. The worker may want to travel and need the extension approved before doing so. The Service's current processing times for H-1B extensions create a nebulous period between the expiration of current status and approval of the extension. Luckily, Federal Regulations have provide an out in such situations. The so-called "240 day rule" was implemented to allow an employee to continue to work for an additional 240 days after the expiration of the visa for the same employer so long as there is a timely filed (i.e. before the expiration of the current status) and pending H-1B visa extension application with USCIS. The benefit is clear; the H-1B worker will continue to work for the employer unabated. This is true even if USCIS issues a Request for Evidence seeking additional documentation of H-1B eligibility. However, if the petition is denied, the worker must cease employment as of the date of denial. Any period of work after such a denial would be considered unauthorized employment.

Assuming there are no problems with the extension, a new I-9 form must also be completed in the department in order for the H-1 holder to continue. With your extension receipt, you can write "240 day rule applies" on the Form I-9 and then reverify the I-9 at the end of the 240 days when you have received the H-1B extension approval notice. This is helpful for your Human Resources department as they often feel uncomfortable in maintaining employment without the approval notice in hand.

Travel with Extension Pending:
H-1B visa extensions should be made 3 to 6 months in advance of the intended start date to ensure timely USCIS processing of the request. Workers in valid H-1B status may travel abroad after the extension has been filed with USCIS but must return before the current H-1B expires or wait abroad for the extension to be approved. The approval notice can be sent to the applicant to obtain a new visa with which to return to the U.S. As a note of caution, certain consulates may require additional documentation in addition to the approval notice such as the completed petition and/or DOS forms (such as the new DS-160) to issue a new visa stamp. The U.S. Consulate in India is especially detailed and requires more information. Always check the consulate's website prior to scheduling an interview in these situations.

Extending the H-1B Visa Beyond the Six-Year Period
An H-1B worker may be nearing the end of his or her six year validity period on H-1B. All else being equal, an H-1B worker cannot extend their status past the six year period and is required to leave the U.S. for a year before returning on H-1B status. However, in October of 2000, AC21 was enacted enabling H-1B visa holders with approved I-140 petitions who are unable to adjust status to lawful permanent resident status (I-485) due to the per-country limitations, to be able to extend their H-1B visas until their application for adjustment of status has been adjudicated. If you have an employment based green card application filed on your behalf in EB-1, EB-2 or EB-3 categories and you are not able to file for adjustment of status because you are from a country where your priority date is not current, then you can extend your H-1B visa for up to three additional years. The approved I-140 is your ticket to the additional three years. If your I-140 is still pending, then you can only obtain one additional year provided that 365 or more days have passed since filing your labor certification or 365 days or more have passed since the filing of the I-140. Applicants from China or India often experience this scenario as the per-country limitations from those countries are quite small in comparison to other countries.

Continue reading "Columbus Immigration Lawyer: H-1B Visa Extensions and the "240-Day Rule"" »

The H-1b visa program was designed with the intent of attracting some of the world's brightest minds to the United States to work for a temporary period. Many of the world's smartest and most skilled workers are able to utilize this employment based visa and the United States is strengthened by attracting these educated and highly skilled workers. The H-1b visa often times leads to procurement of a Green Card through the PERM processes. If it is true that part of the policy for establishing the H-1B program is to attract the world's smartest and most skilled workers to our country, why then would the Government allow for loopholes in the law that could create a financial penalty for workers who possess a master's degree as opposed to a bachelor's degree?

H-1B Dependency

In an effort to prevent companies from misusing the H-1B program, the Department of Labor and the USCIS has set up a system for discouraging employers from employing an extremely high percentage of H-1b visa holders in relation to the American workers that a company employs. A company that employs a high percentage of H-1b employees may fall into the category of "H-1b dependant."

H-1b dependant employers must make additional attestations on documents filed with the Department of Labor. Specifically, an H-1B dependant employer must swear that the H-1b worker did not displace any American worker for 90 days before and after the H-1b visa is filed. Additionally, an H-1b dependant employer must attest that it has made good faith efforts to recruit American workers to fill positions in its company. Penalties for violating the attestation requirements can be quite severe.

If a company has a high percentage of H-1b workers, and is would be considered H-1b dependant, the company can avoid the attestation requirements listed above by doing one of two things: 1) paying the H-1b employee $60,000 per year or 2) hiring an alien with at least a master's degree.

However, the problem that this rule produces is that an H-1b employer could potentially pay the holder of a master's degree less money than a holder of a bachelor's degree: thereby creating a master's degree penalty. Penalizing persons with higher levels of education makes no logical sense insofar as immigration policy is concerned. However, it is potentially true that companies could attract holders of master's degree for the purpose of paying them less than the employer would have to pay the holder of a bachelor's degree.

Continue reading "Columbus Immigration Lawyer Discusses H-1b Visas, H-1b Dependency Issues & Possible Penalty for Aliens Possessing a Master's Degree." »

Arizona has recently passed one of the harshest anti-immigration bills in America's modern history. While the bill is obviously aimed at those persons who have entered the United States from Mexico without inspection, the effects of this bill will be felt in all immigrant communities. The law gives state and local officers the authority to arrest and detain any person in violation of federal immigration law as well as proscribing punishments for those who aid immigration law violators. Those persons who are present in the United States on valid employment based visas, such as H-1B, L-1 and H-2A, as well as those persons who are eligible or have applied for a Green Card or Legal Permanent Residency through the PERM process or family based petition, now must be extra careful to remain in valid immigration status at all times and above all else always carry their "papers" on them. Just as the tide raises all boats, Arizona's law will affect all immigrants and their employers within that state

On the heels of Arizona's new law, certain Ohio senators have begun the process of drafting copycat legislation. The consequences of such legislation for Ohio business if such legislation were to be passed could be very grave. A bill that damages the confidence of Ohio's vital, skilled and hard working immigrant population in the state's openness and welcome for immigrants in general would do unnecessary harm to Ohio's already recession weakened economy. Before Ohioans jump on the anti-immigration bandwagon, perhaps they should instigate the wording of Arizona's legislation and its potential to harm Ohio's economy.

Ohio should not burden businesses with the requirement to investigate all contractors and subcontractors for services

Arizona's law makes it a crime to knowingly or intentionally employ an unauthorized immigrant. Furthermore, Arizona's law makes it illegal to contract with a person who intentionally or knowingly employs an unauthorized immigrant to perform work for the contacting person. If read literally, Arizona's law would make it a crime to contract with any person or business that has hired an unauthorized worker. As a precaution, businesses would be required to investigate the immigration status of all of their business contact's employees. For the large and medium sized corporations that call Ohio home, such a law would create an unreasonable financial burden and untenable risk of criminal prosecution. There are plenty of other states that would be happy to siphon off the business of Ohio's corporations with the lure of a decreased risk in liability.

Ohio's immigrants make Ohio stronger

Ohio is home to one of the most diverse and most representative cross sections of business, industry, agriculture, research and government as can be found in the United States as a whole. Ohio's many colleges hire the best and brightest people in the world to teach and carry out research. Ohio's businesses rely on skilled workers in engineering and technology to fill positions where not enough American citizens can be found to fill demand. Finally, Ohio's agriculture relies on the labor of H-2A non-immigrants to carry out some of the toughest jobs on the farms and in the fields. Ohio needs to attract immigrants in order to fill vital jobs that make Ohio's economy strong. Why would we want to injure or insult our immigrant population by requiring them to carry "papers" like in some dictatorial third world country? Again, there are plenty of other states and countries that would love to attract skilled and hard working immigrants to carry out the jobs that are vital to the economy.

Continue reading "Columbus Immigration and Visa Attorney Examines the Effects of Potential Immigration Bill on Ohio Business" »

U.S. Senators from the Democratic Party have recently released the first serious outline for eventual Comprehensive Immigration Reform legislation. This plan not only re-writes the rules regarding the attainment of citizenship with regard to those aliens who have entered without inspection, but it also alters the legal landscape for gaining an employment based green card through the PERM process as well as H-1B and L-1 temporary visas. While some of the changes that have been outlined largely appear to bring long needed adjustments to the employment based visa system, there is cause for concern regarding certain aspects of the plan relative to employment based immigration. The American public, petitioning employers as well as highly skilled persons from around the world are left to wonder, does this comprehensive immigration reform plan really do more to attract the world's best and brightest, or does this plan discourage highly skilled people from working in the United States. Is this plan for Comprehensive Immigration reform a wolf in sheep's clothing?

The Effect on Educated Foreign Workers

The central theme of the proposed immigration plan, relative to employment based immigration, is to encourage highly skilled laborers to immigrate permanently, while at the same time discouraging temporary visas for highly skilled persons. This goal is accomplished by simply systematically removing restrictions for obtaining a Green Card for certain highly skilled foreign nationals, while a bevy of crushing restrictions will be imposed on employers hiring temporary workers under the H-1B and L-1 categories. (See page 18. Section A.) Whether it is the unintended or simply unspoken net effect of the proposed policy changes, the number of highly skilled persons approved for employment based immigration will be reduced under this proposed plan in the form that it is written.

First the Good News

This proposed plan for immigration recognizes that the current system of assigning Green Cards for highly skilled workers on a country by country basis has few if any positive policy aspects. Under the new plan, per-country employment based immigration caps will be abolished. In contrast, the current system nonsensically imposes a five year waiting period for obtaining a Green Card on people from India or China who possess a master's degree. Additionally, Employment Based Green Cards for persons from Mexico holding a bachelors degree are currently unavailable at all, while persons with bachelor's degree from any other country in the world could theoretically obtain a Green Card, eventually. Removing the per-country preference for employment based immigration for highly skilled individuals is a welcome and needed change to the current immigration scheme.

Additionally, the proposed plan simplifies the employment process for aliens who hold advanced degrees from American universities and enter the United States with a valid offer of employment from an American employer. This change is intended to remedy the incongruence between America's open pursuit of foreign nationals to study in American Universities, but refusal to allow the same talented people to remain to work and live.
This plan also removes the "non-immigrant intent" requirement to many of the visas that are given to foreign national students. Under the current plan, most student visas require that the student have no immigrant intent when studying in the United States. This requirement is fulfilled by not allowing such students to immediately apply for immigrant visas in most situations. Some visas even require students to return to their country of origin for a period of time before returning to the United States after they have graduated.

Part of the legislative goal of the old policy was to promote American ideas by forcing students to return home and use the knowledge, skills and American experience in their native countries, thereby expanding the American cultural influence to the world. At this point in time, most countries have been exposed to American ideas and ideals and have accepted or rejected the same. Therefore, it is high time that America not snub the very people that America educates here by requiring them to move back home or wait for some ridiculous period before receiving a Green Card. The proposed plan would do much to remedy this outdated policy objective.

... and then the Bad News

The H-1B and L-1 system of temporary visas for skilled workers has come under increased scrutiny for years. Many administrative policy changes have been levied upon these visas categories in order to prevent perceived fraud, abuse and injury to Americans seeking jobs. The proposed plan would now set in stone tougher requirements for obtaining and maintaining such visas through legislation as well as imposing increased penalties on those businesses and employees attempting to obtain an H-1B or L-1 visa without adhering to the law.

Continue reading "A Wolf in Sheep's Clothing? : Columbus Immigration Attorney Discusses Comprehensive Immigration Reform's Effects on the PERM process, Green Cards as well as H-1B and L-1 Visas" »

Since January 1st of 2010, the Department of Labor ("DOL") has overtaken the responsibility of determining the prevailing wage for the Labor Certification Applications used to obtain a Green Card or Legal Permanent Residency ("LPR") in employment based visa petitions. The effect of the government's change to the process intended or not, has been to substantially increase the time needed for before beginning the actual PERM process. Additionally, many institutions, such as colleges and universities, which rely on the official prevailing wage determinations of the government, have seen the same delays applied to their H-1B filing process. At a recent meeting between the Department of Labor and representatives of associations that have a stake in prevailing wage issues, the DOL was asked and answered real questions about the important issues that the government's new policy in this area has created. As a result, the DOL has offered the first glimpse of guidance for successfully completing a prevailing wage determination. In usual governmental fashion some of the answers given have been vague and unsatisfying to those working with these issues on a daily basis. Practitioners and applicants are left to wonder: Is there light at the end of the tunnel, or are these changes to the prevailing wage part of a larger policy of deterring the best and the brightest from moving to America?

Insight to common problems encountered within the Prevailing Wage Application Itself

First and foremost among the problems presented by the Department of Labor's prevailing wage system is the amount of time that it takes from submission of the form, to determination of the result. The delay in process has essentially taken a two (2) day process and created a sixty (60) day ordeal. The effect of this delay has been to severely restrict the start time for beginning the arduous Green Card process. This delay has also had the side effect of injuring large institutions such as colleges and universities that frequently rely on the prevailing wage determination for its 100% accuracy and reliability when filing H-1B applications for professors and other workers.

The department of labor has stated that the delays have been caused by the increased workload and the lack of staffing available to make such determinations. While one would think that the DOL should have anticipated a flood of prevailing wage applications when they centralized this process by wrestling it away from the states, the government claims that it is working diligently to resolve the issue. The DOL hopes to hire more adjudicators in order to take control of this situation and reduce processing time. While the government's acknowledgement that sixty days (60) is too long of a wait time, the admission is little solace to those who have been squeezed for time by this process.
Incomplete Applications and Requests for Clarification

One advantage of filling out a prevailing wage under the iCERT format is that the website warns the applicant when fields on the application are not filled in. Specifically, there are red asterisks next to all vital fields warning the user to fill in the blank. There are also various pop-up warnings and alert signs that remind the user that a field has not been completed in one of the necessary areas of the application. This system of alerts has a distinct advantage over the paper submission format, where any omission would result in a denial.

The DOL has recently explained the process for denying incomplete or ambiguous prevailing wage applications. First, incomplete prevailing wage applications will be denied. The immediate effect of a denied prevailing wage application is that a great deal of further delay will occur. If one is to assume that the error will not be found until the application is processed, and applications are not processed for up to sixty days, than it is easy to see that such a denial could be disastrous.

A more encouraging sign of progress is the DOL's stance on instances where more information could remedy an ambiguous field. The DOL has stated that where the DOL needs more clarification or more information to resolve an issue on the application, the DOL will e-mail the employer or attorney and request such additional information. The recipient of the e-mail will have seven (7) days to respond to such an e-mail request. What is not exactly clear is what constitutes a situation where a request for additional information is warranted, as opposed to a situation where a denial is issued. The best practice, as always is to be meticulous and clear when filling out such forms.

Guidance on some common issues relating to specific fields of the application

Abbreviations for Education Majors - It is common in the real working world for people of many different college majors to qualify for a working position. If one wishes to report all of the majors that are applicable to a certain position on the prevailing wage form, he or she must do so in a very limited amount of characters. If the majors applicable to a position are very wordy, it has been common practice to abbreviate the major in the field to fit all majors that may apply. A college major that is left out could theoretically be used to limit the potential qualified applicants. The DOL has stated that they will accept common abbreviations for college majors and that they have retrained their staff accordingly. One is left to wonder what a "common abbreviation" is. However, the small recognition of the reality of the process is encouraging.

Alternate Education and Experience Requirements - It is also common in the real world for employers to accept different, but equivalent levels of education and experience for a position. In the world of PERM, this is a delicate and intricate balancing act to show. For the sake of this blog, we can assume that a bachelor's degree plus five years of job experience is equivalent to a master's degree plus two years of job experience. The prevailing wage application only allows for one "set" of work and experience in the applicable field. The DOL has stated that a second "set" of education and experience may be placed in the "special skills" section of the application. It must be noted that practitioners should clearly refer the reader to see both fields for the total of the education and experience required.

Using Experience Rather than a Bachelor's Degree - If the applicant does not have a bachelor's degree, but does have a sufficient amount of experience to add up to a bachelor's degree, the common practice has been to state so with specific, legally operative language on the prevailing wage application. The DOL's prevailing wage application does not allow enough room to type the specific language needed. The DOL has addressed this problem by recommending this language be placed in the "special skills" section with a clear reference to and from both applicable fields.

Roving Employees - Where an employee will carry out his or her work in various locations, some of which are not presently known, the DOL has referred practitioners again back to the special skills section of the application to input the necessary information. Essentially, if it in not known where all of the work locations will be, check the box that says "no" to multiple work locations, and clarify the answer in the special skills section. Stating "various locations" or "unknown" may result in delay or denial of the application.

Continue reading "Department of Labor Prevailing Wage Guidance: A Light at the End of the Tunnel for PERM and H-1B Filings?" »