Immigration Visa Attorney Blog

Here's another recent Department of Labor appeal case for those in the community to take a look at. This one involves analysis of how exactly we define experience when it comes to time on the job vs. time in school.

In April of 2009 a Certifying Officer (CO) denied an employer's request for Permanent Employer Certification (PERM) for the position of Product Manager on two separate grounds. One reason was the alien did not meet the minimum experience for the position under the Code of Federal Regulations (CFR).

Under CFR the minimum qualification for the position is a "Bachelor's Degree in Merchandising and five years experience in the field or equivalent combination of education and experience." It was that piece of regulation the CO cited when making the denial.

In a request for reconsideration on May 1, 2009, the employer argued that the alien had "one year of university credit" and had been on the job for 14 ½ years. The employer felt the year of education and job experience was enough to equal 17 years of overall experience.

On February 18 of 2010 the CO denied certification. The CO pointed to a 1994 policy guideline on certification in which a bachelor's degree is listed as equivalent to two years of experience. That would mean a Bachelor's degree and five years of experience would be equal to seven years in the work place, not 17.

That meant the employer's formula was not "substantially equivalent" to the primary requirements of the job.

The case was turned over to a judge with the Board of Alien Labor Certification Appeals. After outlining the way the PERM process is supposed to function - "exacting" rather than drawn-out - the judge would ultimately find for the CO.

Continue reading "Columbus, OH Attorney: BALCA Looks at Work Experience" »

We wanted to direct folks here in central Ohio to a recent announcement made by the Department of Labor with respect to its H-2B program. The Department of Labor is proposing a change to the program which would impact both employers and workers.

Last week the Department of Labor sent out a release announcing a proposed revision to the H-2B temporary nonagricultural worker program. According to the announcement, the proposal would "ensure U.S. works receive the same level of protection and benefits as temporary foreign workers (for H-2B) . . . and to provide better access for employers with legitimate labor needs."

The highlight of the changes would be a new registration program. The Department of Labor is hoping this will allow employers to conduct market tests for new labor closer to the point at which they have a need. It would also remove contractors as users of the program.

Other proposed changes to the program include: a national H-2B registry for all postings; requiring documentation from employers as to their U.S. employee recruitments efforts; new transparency measures related to agency agreements and foreign recruiters; the reinstatement of state workforce agencies (SWA) as experts in local labor conditions and recruitment patterns; and lengthening the amount of time during which American workers are required to be recruited.

In the statement Secretary of Labor Hilda Solis said: "As our economy continues to recover, it is important for U.S. workers to receive access to all jobs, and that the H-2B program is used as it was intended. At the same time, workers employed through the H-2B program must be treated fairly."

The H-2B program is in place so that foreign nationals can come to the United States to fill nonagricultural jobs and requires a Form I-129, Petition for Nonimmigrant Worker.

To qualify for H-2B classification an employer must establish the need for the worker is temporary, regardless of the position itself. Such positions are usually seasonal, for peak-load or a one-time occurrence. Employers also must demonstrate no U.S. workers are willing and qualified for the position and that the employment will not negatively impact salary and conditions of other U.S. workers.

The Department of Labor will be accepting written comments on the proposal until May 17. Those interested can use www.regulations.gov or send written correspondence to the DOL's Office of Policy Development and Research, Employment and Training Administration: 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

The entire proposal can be viewed in the March 18 edition of the Federal Register.

A judge for the Board of Alien Labor Certification Appeals recently ruled on an interesting case related to the burden employers face trying to prove the hardship related to training a new employee.

The case is a good one for our friends here in Columbus to take a look at, especially with regard to the intricacies related to federal code. It is yet another instance where experienced representation must be present when maneuvering the permanent labor certification (PERM) process.

In late 2006 a company sought PERM certification for a position entitled "Propagation Supervisor." In May of 2009 an audit was requested by the Certifying Officer (CO) who requested the employer's State Workforce Agency job order along with several other materials.

A few months later the CO informed the employer the request was not being certified "in part because the documentation submitted by the employee . . . was insufficient to demonstrate that a U.S. worker could not be trained to qualify for the position."

In September of 2009 the employer's representative filed a motion for the application to be reconsidered. The argument was that, among other factors, the growth of the business and illness suffered by the employer prevented the employer from training a U.S. worker for the position.

The CO denied this appeal in January of 2010 and forwarded it to BALCA. A brief prepared by the Employer's council argued enough evidence had been provided to show an inability to train a U.S. worker.

The pertinent piece of the Code of Federal Regulations (656.17) states that the Department of Labor must evaluate the "training and experience possessed by the alien beneficiary at the time of hiring" and make sure more isn't being required of U.S. applicants. The exception comes when "the employer can demonstrate that it is no longer feasible to train a worker to qualify for the position."

To that end, the employer's council mentioned that the CO needed to take into consideration "the change in business conditions" that made it impossible to train a U.S. worker. That change makes it different, the employer argued, than determining whether a new worker can be trained.

Continue reading "BALCA Rules on Training New Workers" »

During our recent four-part series on the current state of H-1B visas, we touched on a few areas where the program needs evaluation and reform. We hope businesses and other interested parties here in central Ohio took a look at the posts (which can be found HERE, HERE, HERE and HERE) in order to familiarize themselves with the current state of affairs.

It seems possible that discussions this week in Washington D.C. are a step on the path to improving some of those H-1B issues we wrote about.

TechNet, a lobbying group that works on behalf of the tech industry, sent a large contingent to meet with representatives of both Congress and President Obama. Their goal was for to lobby lawmakers on a number of issues including reform of the country's visa program.

The contingent from TechNet included more than 50 representatives, including the CEO of Cisco and high-ranking officials from NASDAQ OMX and the New York Stock Exchange. They are to meet with representatives from both parties.

TechNet President and CEO Rey Ramsey said to win the future America must invest in "future discoveries that will create good paying jobs for more of our people."

"To reach that goal," Ramsey said, "we must make the smart policy choices on . . . high skilled immigration."

Continue reading "CEOs of Tech Companies Speak with Federal Legislators about H-1B" »

Tom Brokaw recently filed a report for the network's "America at the Crossroads" series on the subject of America potentially losing job creators to the limitations of programs like H-1B:

Visit msnbc.com for breaking news, world news, and news about the economy

Interested parties here in the Columbus, Ohio community should be aware that the United States Citizenship and Immigration Services (USCIS) will soon start accepting cap-subject H-1B petitions. The first day of its 2012 Fiscal Year is April 1, 2011.

Petitions will be accepted by the USCIS until the cap number of 65,000 is reached. 20,000 additional visas are available for foreign nationals with a Master's degree or higher from an American educational institution.

H-1B is a temporary nonimmigrant visa for specialty occupations. The visa allows foreign nationals with specialized knowledge and education in fields such as Information Technology, education and accounting to work in the United States for up to six year.

Applying for an H-1B visa consists of completing a Form-129 (Petition for a Nonimmigrant Worker) as well as any applicable supplementary documents. Applicants must include a Labor Certification Application (Form ETA 9035) from the Department of Labor and supply evidence or documents supporting the petition. That evidence usually relates to the beneficiary's eduction and how the position qualifies as a "specialty occupation. There is also a filing fee which ranges from $320 to $2,320.

A full overview of the program can be found HERE.

Accompanying the beginning of this year's H-1B process is a proposal for a electronic registration system the USCIS unveiled Thursday in an attempt to reduce costs. Starting next year employers could have the ability to register a petition electronically with the USCIS. Prior to the beginning of the filing period the USCIS would select the number of visas it expects will take it to the cap number. At that point applicants would only need to file petitions for the selected registrations.

Continue reading "'12 H-IB Cap Year Starts April 1, New Electronic Registration System Proposed" »

A decision made this month by the Board of Alien Labor Certification Appeals (BALCA) highlights how the continually changing world of internet technology influences the way visa law is interpreted. Our neighbors here in central Ohio need to be aware of the minute details certifying officers (CO) evaluate as they examine visa petitions.

In October of 2007 an employer had its application for a Permanent Employment Certification for the position of "Dentist" audited. The employer was instructed to provide information related to recruitment.

The CO issued a denial of the certification request in March of 2009, on the grounds the employer failed to identify itself on a job search website. The employer requested a review but was denied again in November for the same reason.

According to the CO, the employer was in violation because "the information initially presented to interested individuals via the Search results would only show the employer's name as listed with (the job search site), the position title, location and the date posted." In this case the results on the search page listed the employer as "confidential."

The employer believed that even though its name was not listed on the search pages, when a potential applicant clicked on the hyper link for the full job description he or she would be able to view the employer's name and street address. The employer did not feel as if the advertisement was "blind," as prospective employees would see the required information upon clicking the entire job listing. The CO did not agree and the case was forwarded to BALCA in November of 2009.

Continue reading "Columbus Immigration Attorney Review: BALCA Clarifies Website Policy" »