Articles Posted in Employment Based Immigration

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification for an alien worker for the position of “Controls Engineer.”

The application was accepted on October 2, 2009 and on the application where additional recruitment efforts required were suppose to be reported, the Employer cited the posting on its web site and use of a referral program as well as a private employment firm. The dates listed for posting were “06/26/09 to Ongoing.” The application was denied by the CO citing the Employer failed to fill out a section, rendering the whole application incomplete. The Employer then asked for a review but also wanted the chance to change and correct information on the new application. The revised application stated that the end of the posting on the website and referral program was “07/30/09.” The application was redirected to Appeals where the CO argued under 20 C.F.R. § 656.11(a) that an application revised after July 17, 2007 cannot be accepted.

PERM regulation 20 C.F.R. § 656.17(a) controls and it provides that any incomplete application will be denied. However, the BOARD found that the Employer did not submit an “incomplete” application, the Employer simply did not fill out the section in the format instructed, mm/dd/yyyy. Further, BALCA found that there was no precedent to suggest that filling out “ongoing” in the answer field was incorrect.

The Board of Alien Labor Certification Appeals (BALCA) recently vacated and remanded the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Purchasing Manager.”

The CO originally denied the application on the grounds that the Employer failed to provide evidence of its State Workforce Agency (SWA) job posting subsequent to an audit. The Employer stated that a screenshot of the Oklahoma Job Link Website was in fact submitted. The request for review was sent to the Appeals Board by the CO. In an appellate brief, the Employer continued to argue that the SWA job posting was included in the original audit while the CO stood by its original position that it was not.

Accordingly, the BOARD reversed the decision of the CO, finding that the Employers SWA job posting was clearly included in the audit response. The application was sent back to the CO for issuance of a labor certification.

The Administrative Appeals Office (AAO) Processing Times were released with processing dates as of December 1, 2010.

If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.

Administrative Appeals Office

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Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa

Is the H1B CAP still available? If so, can I still file and get accepted before the cutoff?

On October 28, US Citizenship and Immigration Services (USCIS) commenced their first quarterly public engagement in Spanish. The series are part of an effort to communicate with the many different people USCIS services and each event will focus on a specific topic related to immigration or citizenship. In addition, live question-and-answer sessions via USCIS officials will be available to anyone.

“How to Help Your Relative Become a Legal Resident” was the theme of the first engagement which was held on October 28 from 1:00pm to 2:30pm. The rest of the series is planned to be held on January 21, April 28, and July 28. If you would like to find out how to participate in the next engagement visit www.uscis.gov or call 1-800-375-5274(toll-free).

MVP “Q & A Forum” – This Friday, December 3rd, 2010

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, AZ SB1070, priority dates, or the debate focused on Ending Birthright Citizenship, please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Effective October 13, the US District Court of Appeals for the Ninth Circuit overturned a ruling that allowed special immigrant religious workers to file their Form I-485 alongside the organizations’ Form I-360. United States Customs and Immigration Service (USCIS) will no longer accept Forms I-485, I-131, I-765 that are filed based on are with a pending I-360 petition as of November 8. Forms I-485, I-131, and I-765 filed on or after November 8 must be submitted with an approved I-360 petition or they will be rejected.

After an investigation lead by U.S. Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HIS), George Anagnostou of Maryland, was sentenced on October 28 to four months in prison and another four months on house arrest with electronic monitoring. Anagnostou also faces two years of supervised release after serving his sentence. His charges consisted of harboring at least 24 illegal workers of the Timbuktu and By the Docks restaurants. As a part of his sentencing, Anagnostou was forced to give up his motorcycle, pay a sum of $378,386.21 from five different bank accounts, give up $99,890 from the restaurant and his house, as well as an additional pay $256,696.67 at his court hearing.

From 2000 to 2005, Anagnostou was in charge of hiring employees for both Timbuktu and By the Docks restaurants. Other than collecting two documents, Anagnostou never made any other efforts to verify the authority of an individual to work in the United States, like using the required Employment Eligibility Verification forms (I-9s). Even when informed that many of his applicants had presented him with falsified forms, he insisted that his employees stop asking questions and accept the documents. In addition, the Social Security Administration began notifying Anagnostou that the Social Security numbers he was supplying for his employees did not match up in the database but he still did nothing to validate the legitimacy of his workers.

Anagnostou benefited financially from the illegal workers employment at the restaurants because he deducted their rental payments from their overtime wages due, paid them in cash preventing him from being subject to tax liability and he didn’t claim the rental property on his income taxes.

After pleading guilty to harboring and concealing illegal aliens on November 11, Arkansas resident Sen Chen was sentenced to five years probation, six months house arrest, a $5,000 fine and a $100 special assessment. As a part of his sentencing, Chen also forfeited his restaurant, house, and car. The investigation of Chen led by US Immigration and Customs Enforcement (ICE) Office of Homeland Security Investigations (HSI) agents discovered he was providing illegal immigrants with transportation, food, housing and money in exchange for working at his restaurant.

According to ICE HSI special agent Raymond Parmer this case, “serves as a stern reminder about the consequences facing employers who exploit illegal alien labor.”

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on November 18, 2010 with processing dates as of September 30, 2010.

If you filed a petition with one of the Service Centers, please review the links below to determine the applicable processing time associated with your particular case.

California Service Center

Contact Information