H1B Visa Lawyer Blog

March 31, 2009

BALCA reverses denial of Labor Certification

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 Plumber Helper.

The employer, a plumbing services company filed a LC on behalf of an alien worker in April of 2001. The application got caught up in the large number of pre-PERM backlog cases, and as a result the employer did not receive the Recruitment Instructions letter until February of 2007. The letter directed the employer to advertise the offered position in a newspaper of general circulation. The Employer placed an ad in the Houston Northwest Greensheet for the requisite period of time, and also placed an advertisement for the position online. In August of 2007, the director issued a Notice of Findings (NOF) to the employer indicating that the employer must submit proof of advertisement or the application would be denied. In September, the employer submitted a notarized proof receipt indicating that the employer had run the advertisement in the Greensheet. Thereafter, the CO issued its final determination denying certification because the Greensheet did not meet the definition of a newspaper of general circulation. Subsequently, the employer requested BALCA review. The employer indicated in its request that (1) it has used the Greensheet before for advertising purposes and forms were never returned or questioned, and (2) it asked to be permitted to re-advertise if the Greensheet was determined inadequate.

March 30, 2009

FYI – Clarification on H-1B Lottery System

by Kellie N. Lego

Many employers have been questioning whether the regulation governing the “lottery” system will apply to this year’s H-1B cap. The United States Citizenship and Immigration Service (USCIS) has provided that the lottery will apply this year. In accordance with the regulation, the USCIS randomly selects the number of petition’s necessary to reach the cap from petitions received on the final receipt date. This year, it has been confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the “lottery” will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the “lottery” is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009. All petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date.

If you have any further questions regarding the H-1B lottery system or the H-1B nonimmigrant visa in general, please contact our office.

March 27, 2009

Appeal of an Alien of Extraordinary Ability is rejected by Administrative Appeals Office

by Kellie N. Lego

The Administrative Appeals Office (AAO) recently considered the merits of the petitioner’s appeal on a de novo basis. Accordingly, the appeal was rejected, subsequent motions were rejected and the petition will remain denied.

There were several procedural errors made in the adjudication of this petition. The employment based immigrant visa petition was denied by the Director of the Vermont Service Center (VSC) on August 3, 2004. The petitioner filed a subsequent appeal on September 8, 2004. The director declined to treat the late appeal as a motion and forwarded the matter to the AAO. On October 11, 2005, the AAO rejected the appeal as untimely without rendering a decision as to the merits of the case. On November 9, 2005, the petitioner filed a motion to reopen the AAO’s rejection of his appeal. On June 6, 2006, the director dismissed the motion rather than forwarding it to the AAO for consideration. On December 12, 2007, the petitioner filed a motion to report the director’s decision dismissing his prior motion. The director forwarded the motion to the AAO. Although the issuing director shall have jurisdiction over the motion, given the directors errors throughout the proceedings, the AAO decided that they would consider the merits of the case on a de novo basis.

The issue on appeal is whether the petitioner properly filed the appeal. In order to properly file an appeal, the regulations provide that the affected party must file the complete appeal within 30 days after service of the unfavorable decision. If the decision was mailed, the appeal must be filed within 33 days. The date of filing is not the date of mailing, but the date of actual receipt. According to the facts, the appeal was untimely filed. Although the appeal was untimely, it did meet the requirements of a motion to reopen. The regulations specifically provide that if an untimely appeal meets the requirements of a motion to reopen or a motion to reconsider, the appeal must be treated as a motion, and a decision must be made on the merits of the case. Thereafter, the AAO considered the case themselves due to the prior errors committed in this proceeding.

March 26, 2009

GAO Report unveils significant vulnerabilities in the Department of State’s Passport Issuance Process

by Kellie N. Lego

The United States Government Accountability Office (GAO) conducted an investigation from May 2008 through March 2009 which showed that terrorists or criminals could steal an American citizen’s identity, use basic counterfeiting skills to create fraudulent documentation for that identity, and obtain a genuine U.S. passport from the Department of State (DOS). The GAO conducted their investigation by using “basic counterfeiting skills.”

The same GAO investigator was able to easily obtain four passports issued by the DOS under four different names. The first passport was applied for in a United States Postal Service (USPS) office in Virginia in July of 2008. The investigator used a counterfeit West Virginia driver’s license, and a counterfeit New York birth certificate, along with the passport application form. The first passport was issued 8 days after the application was submitted for review. The GAO investigator applied for the second passport in August of 2008 at the State’s regional Washington, D.C. passport issuing office. The GAO investigator used a genuine District of Columbia (DC) identification card obtained with fraudulent documentation, and a counterfeit New York birth certificate, along with the passport application form. Surprisingly enough, the passport was issued to the investigator that same day. In October of 2008, the investigator applied for another passport in a USPS office located in Maryland. The investigator submitted a counterfeit West Virginia driver’s license, and a counterfeit New York birth certificate. The submitted passport application contained the Social Security Number (SSN) of a fictitious 5-year-old child, which was obtained from a prior investigation. Once again, another passport was issued to the investigator based on the documentation submitted only 7 days later. The final passport issued as a result of this investigation was in December 2008 from a USPS office in Maryland. The investigator submitted a counterfeit Florida driver’s license, and a counterfeit New York birth certificate. The passport form contained the SSN of a deceased individual. And again, the passport was thereafter issued only 4 days after the documentation was submitted for review.

After the investigation, the GAO briefed DOS officials on the results. DOS officials admitted that the findings expose a major vulnerability in DOS’s passport issuance process. According to DOS officials, the department’s ability to verify information submitted by passport applicants is hampered by limitations to its information sharing and data access with other agencies at the federal and state levels. This is the same problem that was identified after the tragic events that took place on September 11, 2001, eight. Additionally, they said that they do not currently have the ability to conduct real-time verification of the authenticity of birth certificates presented by passport applicants, and to make matters worse, there are other difficulties with verifying the authenticity of drivers’ licenses.

March 25, 2009

USCIS released UPDATED Form I-9 EMPLOYER HANDBOOK

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) recently released the updated version of the Form I-9 Employer Handbook.

The handbook provides the basic steps involved with a new hire, including the forms that must be completed, what documents are acceptable and step-by-step directions on how to correctly complete Form I-9.

The handbook also explains the reason we have Form I-9 for employment eligibility, mentions unlawful discrimination and penalties for prohibited practices, and discusses the E-Verify online program component for interested employers.

March 24, 2009

Administrative Appeals Office Processing Times

by Kellie N. Lego

The Administrative Appeals Office (AAO) released its time report on March 18, 2009 with updated processing times for all types of cases accepted by its Office.

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

Administrative Appeals Office

March 24, 2009

Updated Service Center Processing Times

by Kellie N. Lego

Processing Time reports for all of the U.S. Citizenship and Immigration Service (USCIS) Centers were released on March 17, 2009 with processing dates as of January 31, 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

March 23, 2009

EAWA and its effect upon H-1B petitions (TARP RECIPENTS)

by Kellie N. Lego

The United States Citizenship and Immigration Service (USCIS) recently released some guidance regarding the Stimulus Bill, which contains the “Employ American Worker Act” (EAWA) and its effect upon the H-1B visa petition.

If the company was a recipient of the funds distributed through the Trouble Asset Relief Program (TARP), EAWA prevents an employer from displacing qualified U.S. workers when participating in the H-1B visa program. Under EAWA a company is considered an “H-1B dependent employer” and must make additional attestations to the Department of Labor (DOL) when filing the Labor Condition Application (LCA).

According to the guidance distributed by the USCIS, employers must attest to the following additional requirements on the LCA:

March 20, 2009

Guidance on Changing to and Extending B-1/B-2 Status

by Kellie N. Lego

When a citizen of another country wishes to travel to the United States for

business or pleasure, there are specific visas that are available for those individuals. The B-1, Business visa is for those interested in traveling to the U.S. to consult with business associates, to attend conventions/conferences, and to negotiate a contract, etc. In other words, the B-1 visa is intended for those applicants traveling to the U.S. temporarily for business related purposes. The B-2, Pleasure/Visitor/Tourist visa is for those who plan to travel to the U.S. for recreational purposes including tourism, to visit with friends and family, and to obtain medical treatment, etc.

When changing status to B-1 Business visitor, it is important that the applicant document the business activity to be performed, the exact length of time needed to complete the business activity, and the applicant’s intent to depart the United States at that time. This documentation may be established by submitting an itinerary, a brochure of scheduled business events, or evidence of a roundtrip airline ticket, etc. This change of status can only be granted for up to 364 days, so it is extremely important to carefully document the exact length of time needed to complete the activity.

March 19, 2009

Extending H-1B Status beyond the Regulatory Six-Year Limitation Period

by Kellie N. Lego

The H-1B nonimmigrant visa program is designed to allow alien beneficiaries to enter the country and begin working for a U.S. employer for a period of three years. The sponsoring employer or a new employer may renew the H-1B visa for another period of three years. In other words, the Immigration and Nationality Act (INA) regulations clearly allow for the recipient of an H-1B visa to be in H-1B status for a total initial period of six years. The alien beneficiary may then return to his/her home country, remain there for one year, and only then will they be eligible to apply for another H-1B nonimmigrant visa.

However, there are ways to extend H-1B visa status beyond the six year limit. The Vermont Service Center (VSC) Liaison Committee has provided the following guidance for extending H-1B status beyond the six year limitation. If the alien beneficiary has completed one of the following conditions, they are eligible for an extension beyond the sixth year as long as one of the listed conditions have been met prior to the alien’s requested start date:

(1) 365 days or more have passed since the filing of any application for labor certification; and the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification’s validity period; or (2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or (3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.