OUTSIDE THE BOX THINKING, DELIVERING CUTTING EDGE SOLUTIONS!

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “MR Clinical Development Leader.”

The CO denied the labor certification without audit stating the alternative requirements for the position were not substantially equivalent to the primary job requirements on the ETA Form 9089. On the form, the Employer mentions as an alternative requirement for this position “any suitable combination of education, training and experience as an MR clinical development leader, MR Applications Production Manager, Clinical Scientist, Radiographer or as a MR Specialist.” However, the Employer lists “Bachelor’s degree in Radiology, Biomedical Engineering, Chemistry or Medical Technology and 60 months of progressively responsible post-bachelor’s experience and some experience with MR equipment, product and/or application development.” The CO believed the “any suitable combination” wording did not specify the minimum acceptable requirement, so he denied the application in violation of PERM Regulation 20 C.F.R. § 656.17(h)(4)(i).

The Employer requested reconsideration of the denial stating the CO misread their answers to the questions on the form. They argued the minimum requirements are substantially the same as the primary requirements listed on the ETA Form. The Employer mentioned PERM regulation 20 C.F.R. § 656.3, “if the employer is willing to accept work experience in lieu of a baccalaureate or higher degree, such work experience…must be stated on the application form.”

AILA Washington, D.C. Chapter, News Release:

“WASHINGTON, DC – The American Immigration Lawyer’s Association’s Washington, D.C. chapter (AILA-DC) is partnering with Equal Justice Works to host The Forum on Potential Immigration Reform and Stopping Notario Fraud on Saturday, October 26 from 12:00 p.m. to 4:00 p.m. at the Crystal Gateway Marriot at 1700 Jefferson Davis Highway, Arlington, VA 22202.

The Forum will provide an update on the status of immigration reform efforts, and outline steps that immigrants can take now to prepare for the enactment of legislation. It will also describe various forms of legal relief currently available.”

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1- H1B Nonimmigrant Visa

My Visa was expired on Sept’ 2010(first 3 yrs.), still is it eligible to re-open my Visa, after I got Visa I didn’t travelled to US in Visa valid period. 2) I would like to know if the expired H1 can be re-opened/ re-filed?

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.

The H-2B cap limit for the first half of FY 2014 (October 1 – March 31) is 33,000. As of the last count (10/18/13); 6,541 beneficiaries have been approved and 1,296 are pending for a total of 7,837.

The H-2B cap limit for second half of FY 2014 (April 1 – September 30) is 33,000. As of the last count (10/18/13); 0 beneficiaries have been approved and 0 are pending for a total of 0.

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Senior Systems Analyst.”

Upon evaluating an Employer’s Application for Permanent Labor Certification, the CO denied the Labor Application because he believed it violated PERM regulation 20 CFR 656.17(f)(4). The CO denied certification because “the newspaper advertisement failed to list the correct geographical area of employment with enough specificity to apprise applicants of any travel requirements.” He pointed out the physical area of employment contained in the employer’s job ad in the San Francisco Chronicle as well as hotjobs.yahoo.com does not match the one listed on the ETA Form. The ad lists San Francisco, while Fremont is recorded on the ETA Form. The CO stated these two cities are located in different “Metropolitan Statistical Areas” (MSA).

The Employer filed an appeal to BALCA. They declared that the CO made an error in thinking Fremont and San Francisco were in different MSA’s. The Employer argued that the “advertisements complied with PERM requirements and DOL guidelines for roaming positions.” As evidence, the Employer requested BALCA to take administrative notice of a printout from the Census Bureau’s website which lists the MSA’s, among other evidence. In addition, they wanted the Board to review a “County to County” commuting chart from the San Francisco Bay area. The Employer explained that Fremont is the company’s headquarters but the locations of the job are yet unknown.

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Service Centers were released on 10/16/13 with processing dates as of 8/31/13.

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

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, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, October 25, 2013. Act now and submit your questions!

From the USCIS Public Engagement Division:

If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.

For more information, please visit www.uscis.gov.

The U.S. Citizenship and Immigration Services (USCIS) announced that Congress passed a bill extending the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government in Iraqi. President Obama signed the bill into law on October 4, 2013. The SIV program had expired September 30th and has now been extended by three months until December 31, 2013. Senate Majority Leader, Harry Reid (D-Nev.) said the visa program was important because those affected had risked their lives to help the U.S. military.

The USCIS announcement stated, “The extension permits USCIS to approve petitions or applications for visas or adjustment of status in any Iraqi SIV case under section 1244 that were pending with USCIS or with the Department of State (DOS) when the program expired on Sept. 30, 2013. USCIS may also approve an additional 2,000 cases as long as the initial applications to the DOS Chief of Mission in Iraq are made by Dec. 31, 2013.” For up-to-date information on the SIV program, check the USCIS website or call their National Customer Service Center (1-800-375-5283).

Source of Information:

The U.S. House and Senate agreed on a budget deal late last night. President Obama signed the bill early this morning ending the shutdown! All federal government workers will return to their normal work schedules as of today, Thursday, October 17th!

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