H1B Visa Lawyer Blog

February 5, 2010

BALCA reverses denial of Labor Certification – Employer Omissions on ETA Form 9089 were not material as other information provided on the Form answered the essential question posed by the Form

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.

February 4, 2010

Attorney General Cuomo Filed Suit Against Two Immigration Services Organizations for Providing Fraudulent Services

by Kellie N. Lego

On January 14, 2010, Attorney General Andrew M. Cuomo obtained a temporary restraining order against the International Immigrants Foundation, Inc. (“IIF”), International Professional Association, Inc. (“IPA”), and their President Edward Juarez.

As a result of the order, the organizations must refrain from providing immigration services and from soliciting new clients. To help handle the organizations’ existing clients and to protect innocent victims, the Office of the AG and several New York legal associations have made a plan to coordinate their efforts.

The Attorney General filed a lawsuit against these organizations alleging that they have been defrauding immigrants with false promises of citizenship, engaging in the unauthorized practice of law, and illegally charging exorbitant fees for services.

February 3, 2010

USCIS Director issues a Response to Recommendation 43, Temporary Acceptance of Filed Labor Condition Applications for Certain H-1B Filings

by Kellie N. Lego

The Director of the United States Citizenship and Immigration Service (USCIS), Alejandro Mayorkas has recently issued a response to the recommendations of the Citizenship and Immigration Services Ombudsman regarding the temporary acceptance of Labor Condition Applications (LCAs) for certain H-1B filings.

Until March 9, 2010, the USCIS Service Centers will continue to accept H-1B petitions filed without certified LCAs. However, the only H-1B petitions that will be accepted are those that have been filed at least seven (7) calendar days after the LCAs were filed with the Department of Labor (DOL). The only acceptable proof of the submission of the LCA for certification with the DOL is a copy of the DOL’s email giving notice of receipt of the LCA.

Those that do take advantage of the temporary acceptance of these certain H-1B filings must wait until they receive a Request for Evidence (RFE) before submitting the certified LCA to USCIS. The LCA submitted in response to receiving an RFE must be the same LCA filed with the original petition and it must be submitted within 30 calendar days of receipt of the RFE requesting such documentation.

January 29, 2010

Updated Administrative Appeals Office Processing Times

by Kellie N. Lego

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.

Administrative Appeals Office

January 28, 2010

Filing an H-1B nonimmigrant cap/transfer/extension/amended visa petition after the release of the “MEMO”

by Kellie N. Lego

In support of an H-1B petition, a petitioner must not only establish that the beneficiary is coming to the United States temporarily to work in a specialty occupation but the petitioner must also satisfy the requirement of being a U.S. employer by establishing that a valid employer-employee relationship exists between the U.S. employer and the beneficiary throughout the requested H-1B validity period. The Petitioner must also file an LCA specific to EACH location where the beneficiary will be working.

“United States employer,” is defined at C.F.R. 214.2(h)(4)(ii) as follows:

United States employer means a person, firm, corporation, contractor, or other association, or organization in the United States which:

January 20, 2010

Updated Service Center Processing Times

by Kellie N. Lego

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.

California Service Center

January 19, 2010

Reported Advance Parole Document Validity Date Error

by Kellie N. Lego

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***

January 19, 2010

EAD and Advance Parole Renewal SPECIAL continued – Valid until 1/31/2010

by Kellie N. Lego

$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

January 15, 2010

UPDATE on the Federalized Process for Obtaining PWD Requests

by Kellie N. Lego

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.

January 14, 2010

Updated List: SEVP Approved Schools

by Kellie N. Lego

The United States Immigration and Customs Enforcement (ICE) recently updated their list of Student and Exchange Visitor Program (SEVP) approved schools .

The schools listed have all been certified to participate in the program. The program allows foreign students interested in obtaining an education in the United States to complete a visa petition, pay the required fee, and attend a U.S. College or University. The Department of Homeland Security (DHS) created a web based system called the Student Exchange Visitor System (SEVIS) which maintains information on the foreign students accepted into the program. The SEVIS monitors the students for the duration of their approved stay, as required by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996.

Interested Foreign students: There is a process in obtaining a student visa, but it is not a difficult one. The student must first obtain Form I-20 from the U.S. College or University from which he/she intends to enroll, pay the required visa fee (Form I-901) and contact a local U.S. Consulate/Embassy to schedule an interview. At the interview, the student must have Form I-20, proof of payment of Form I-901, financial support documentation, and a completed visa application. The SEVP procedures differ among U.S. Consulates/Embassies; contact your U.S. Consulate/Embassy NOW to determine its particular procedure on applying for a visa before planning for the interview.