The Department of State has released its latest Visa Bulletin.
The March 2010 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.
Already applied in EB3, thinking about filing in EB2…if you are eligible, contact MVP Law Group toll free at 1-800-447-0796.
The Board of Alien Labor Certification Appeals (BALCA) recently reversed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of Household Assistant.
The employer filed a LC which was accepted for processing on June 5, 2006. On September 20th, the CO denied the application because several required selections on the form had not been made by the Employer. The Employer thereafter requested reconsideration at the end of October. In its request for reconsideration, the Employer’s attorney provided responses to the omissions and believed that the request for reconsideration was to determine that the 30 day deadline had not elapsed. The Employer argued that each of the omissions was not material to the adjudication of the application as other information provided within the form answered the essential questions posed by the form. The Employer clearly stated in the motion for reconsideration that it was providing reasons for omissions in the event that the CO accepted the motion despite its lack of timeliness. Thereafter the CO accepted the Employer’s explanations for several of the selections, but found that the denial was valid because the Employer still did not provide information on what should be completed for the omitted selections. On appeal, the CO moved to dismiss the appeal on the ground that it was not timely. The Employer thereafter filed a response opposing the CO’s motion to dismiss.
PERM Regulation 20 C.F.R. § 656.17(a) controls and it requires that an employer who desires to apply for a labor certification on behalf of an alien must file a completed Department of Labor (DOL) Application for Permanent Employment Certification (ETA Form 9089). The regulation goes on to provide that incomplete applications will be denied. In the instant case, the Board found that the CO waived the issue of timeliness and made their decision based upon the materiality of the omissions. The Board recognized that some omissions may not be material to the review of the substance of an application and stated that the Employer made reasonable arguments as to why, in context, the omissions all were not material; however, the CO proffered no explanation for why the omissions prevented a complete review of the application.
The Administrative Appeals Office (AAO) Processing Times were released on January 28, 2010 with processing dates as of January 4, 2010.
If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.
Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on January 15, 2010 with processing dates as of November 30, 2009.
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.
FYI – The American Immigration Lawyers Association (AILA) has reported a glitch in the issuance of Advance Parole Documents during the first part of January 2010. The date of issuance on the documents is noted as January 1990 instead of 2010.
USCIS has identified all of the cases in which the wrong date was issued, and will issue revised forms as soon as the software issue is corrected.
***No further action will be necessary to receive a corrected document***
$450 flat fee (no admin fee) for filing both EAD and Advance Parole per applicant
OR
$200 + $50(admin fee) if filing either EAD or Advance Parole separately
Effective January 21, 2010, the Department of Labor’s iCERT online system will be updated to allow the submission of electronic prevailing wage determination requests. This electronic process will allow Employers and/or their Designated Representatives to submit and obtain prevailing wage determinations (PWD) for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs through the iCERT portal.
Until January 21, 2010, all prevailing wage determination requests must continue to be submitted by U.S. Mail or comparable physical delivery service to the Washington, D.C. address listed below.
BACKGROUND – On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration’s (ETA) appropriate National Processing Center (NPC)–which was designated as the Chicago NPC.
The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Officer (CO) denying labor certification (LC) for an alien worker for the position of “Dental Assistant.”
The employer filed a LC which was accepted for processing on January 16, 2007. ETA Form 9089 indicated that the job required a high school education and twenty-four (24) months of experience in the job offered. The CO issued an Audit Notification letter indicating that the O*Net indicates that one (1) year of experience is normal for the occupation and specifically directed the Employer to establish business necessity for its two (2) year requirement. The Employer responded to the Audit Notification but failed to address the business necessity issue. Thereafter the CO issue a denial letter, the Employer responded by requesting reconsideration and submitted a letter regarding why two (2) years experience was required for the position. The CO issued a letter of reconsideration indicating that the new letter constituted new evidence that was not in the record at the time that the application was filed and on which the denial was based.
PERM Regulation 20 C.F.R. § 656.20(b) controls and it provides that when an application is audited, the audit procedure specifies that a substantial failure by the employer to provide required documentation will result in that application being denied. In the instant case, the CO’s Audit Notification specifically requested that the Employer document the business necessity for its two (2) year experience requirement. BALCA stated that the failure to address the business necessity was clearly a substantial failure to provide documentation required by the audit notification. In addition, the regulations governing motions for reconsideration provided that the request for reconsideration may not include evidence not previously submitted.
The Department of State has released its latest Visa Bulletin.
The February 2010 Visa Bulletin still shows employment based third preference (EB-3) visas as oversubscribed while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India.
Already applied in EB3, thinking about filing in EB2…if you are eligible, contact MVP Law Group toll free at 1-800-447-0796.
The Administrative Appeals Office (AAO) Processing Times were released on December 31, 2009 with processing dates as of December 2, 2009
If you filed an appeal, please review the links below to determine the applicable processing time associated with your particular case.
H1B Visa Lawyer Blog