Immigration Visa Attorney Blog

A recent decision by the Board of Alien Labor Certification Appeals reminds us
of the need for all documentation related to immigration certification and
subsequent appeals be submitted in a complete and timely fashion.

The company in question saw its 2007 Permanent Employment Certification for a software engineer denied on the grounds its online job posting did not publicize the accurate
prevailing wage determination (PWD). It then had an appeal denied, in part,
because the certifying officer would not consider an online newspaper ad it
had not included in the filing audit.

Continue reading ""BALCA Labor Certification Decision: Documentation Not Submitted With Application Cannot be Considered "" »

The Department of State released its December Visa Bulletin and once again the cutoff for category 2A has been moved up. The most recent Bulletin has the 2A cutoff placed at August 1 of 2010.

This is a two-month change from the November Bulletin, which had the 2A cutoff at June 1. This marks the 12th month the date has been moved in 2010, after beginning the calendar year at January 1 of 2006

The United States Citizenship and Immigration Services (USCIS) released its latest cap count last week.

As of November 12 there were 47,800 regular H-1B petitions listed as either approved or pending. The regular cap number is 65,000. There were 17,400 of the "Master's Exemption" petitions listed, in a category with a 20,000 cap.

H-1B allows employers to bring in foreign workers for specialty occupations including science and business-related field.

The USCIS has been accepting applications since April and will continue to do so until the caps are reached. When the caps are reached, applicants will have to wait until Fiscal Year 2011. All sections of Form-129 must be accurately completed in order for an applicant to give themselves the best chance for approval.

Recently the Department of Labor (DOL) released its "Foreign Labor Certification Report," covering the fiscal year ending in September of 2009. The 100-page report updates Labor's Office of Foreign Labor Certification, which handles Permanent and Temporary Nonimmigrant certification programs.

The report gives an overview of each program and detailed some statistics and a few areas where Labor feels it has improved.

Some highlights of the year as reported by the DOL:

-Labor said there was a "marked increase" in measures targeting integrity. Audits combined with an OFLC pilot program played a role. The National Processing Center in Atlanta received a new contract to help with supervision of recruitment cases.

Continue reading "Highlights From the Foreign Labor Certification Report" »

Nothing is certain when it comes to the long-term impact of the Republicans' strong showing in last week's midterm election. But prevailing opinion is that the GOP reclaiming control of the House of Representatives and narrowing its deficit in the Senate will mean less congressional attention paid to immigration issues related to business.

Continue reading "Outlook: GOP Victory Could Mean Immigration Reform Delays" »

Last month the Department of Labor met with representatives of the American Immigration Lawyers Association (AILA) and the American Council on International Personnel (ACIP). One of the more important pieces of news to come out of the meeting was the DOL revealing it plans an increased emphasis on compliance with respect to the PERM program.

Continue reading "Labor: Expect Increase in Supervised Recruitment for PERM " »

A recent Government Accountability Office (GAO) review of closed civil and criminal cases related to the H-2B work visas provided a window into the type of fraud which can be associated with the program.

GAO reviewed ten cases from the past five years that involved violations committed by employers and recruiters involved with H-2B (temporary visas for non-agricultural workers). And while the follow-up provided some cause for optimism - 15 of the 18 recruiters contacted during an investigation acted appropriately when GAO agents posing as prospective employees asked for help violating H-2B rules - the report detailed the kind of violations which have been perpetrated in recent years.

Continue reading "GAO Report Provides Look at H-2B Fraud" »

Ten months after the release of the Nuefeld Memo focusing on the
employer-employee relationship aspect of the H-1b application, the U.S. Citizen and
Immigration Services appears to have retreated to a more reasonable interpretation of the common law relationship.

Focusing on the correct concept of "Right to Control" rather than the original unsupported position of the "Actual Control", we find improvement in USCIS adjudication of the H-1b application. Without going through the legal analysis, there are several precautions and practices an employer can follow which will improve the likelihood their H-1b petition is approved.

If you are an employer who files H-1b petitions, one area where consultation with experienced counsel is of particular importance involves the business practices which demonstrate the relationship between the employer and the employee.

Continue reading "Demonstrating Employer-Employee Relationship Key to H-1b Petitions" »