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.
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.
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.
The Board of Alien Labor Certification has taken a step to clarify the meaning of "business day" in the Department of Labor's Permanent Employment Certification (PERM) process. An administrative judge ruled earlier this month that for the purposes of PERM filings the business day is not limited to weekday and non-holidays.
In late 2007 a restaurant filed a PERM application for "Chefs and Head Cooks" which was initially denied by the Certifying Officer on an unrelated issue. On reconsideration early this year the CO denied on the grounds the restaurant's "Notice of Filing (NOF) was posted for fewer than consecutive 10 business days."
This month the Board of Alien Labor Certification Appeals ruled that all employer advertisements for a position must conform to the Department of
Labor's requirements in order for it to qualify for Permanent Labor
On Oct. 19 BALCA upheld the denial of a 2007 Employer's Application for
Permanent Employment Certification filed by Credit Suisse Securities. An
administrative judge ruled Credit Suisse's month-long web advertisement for
a IT position "did not direct applicants to send resumes to the employer or
provide a description of the vacancy."
Section 245(k) is a provision in the Immigration and Nationality Act (INA) that assists some immigrants in gaining permanent residence even though they may have violated the terms of their status. The specific section is geared towards employment based immigrants who seek to obtain their green card while still remaining in the United States. While, there are legal bars that can keep an immigrant from adjusting their status due to certain violations, Section 245(k) provides with an opportunity for relief.
USCIS released The Neufeld Memorandum on INA 245(K) on July 14, 2008. The intent of the memo was to offer guidance and policy clarification for the USCIS personnel who are responsible for reviewing various immigration applications and to offer further explanation regarding who can make use of section 245(k) when applying for an adjustment of status.
Advocates of immigration are hailing an announcement last month that the U.S.
Immigration and Customs Enforcement (ICE) has ceased seeking deportation for
foreign nationals eligible for green cards.
The announcement was made by John Morton, the assistant secretary for ICE.
Morton added that the agency would drop existing deportation proceedings
against anyone eligible under this new guideline.
Morton wrote in an Aug. 20 memo that in situations where there is "an
underlying application or petition" and ICE determines "a non-detained
individual appears eligible for relief from removal, [its attorneys] should
promptly move to dismiss proceedings." ICE lawyers are being told to move
towards dismissal in situations where the immigrant does not have a criminal
record and is likely to receive a green card.
According to the Miami Herald, those impacted by the change in policy "are
possibly tens of thousands who are married to a U.S. citizen or a legal
resident who has filed a petition for them."
Advocates for immigration believe this is better use of ICE's time and
budget. Cheryl Little, executive director of the Florida Immigrant Advocacy
Center told USA Today that "Targeting those who intend to do harm while
expediting the cases of law-abiding immigrants is the best use of ICE's
precious resources and will save taxpayers money."
Indeed, ICEs press secretary emphasized to the Herald that the agency is
"committed to smart, effective immigration reform, prioritizing the arrest
and removal of criminal aliens and those who pose a danger to national
The overwhelming reason for the policy change is to deal with what Morton
called "major inefficiency." The New York Times reported that 17,000 cases
could be eliminated from the immigration court dockets if ICE dismissed cases
of immigrants like those married to U.S. citizens. Currently the wait for
hearings in immigration court begun by an ICE deportation case is 459 days.
The Specific Vocational Preparation (SVP) system plays a critical part in PERM Labor Certification and is the basis by which DOL may challenge an excessive job requirement by the employer in PERM Labor Certification filings. It is critical to gain a full understanding of the PERM certification in order to understand PERM Labor Certification filing.
SVP is a job grouping system is used by the U.S. Department of Labor in order to regulate and clarify occupational requirements. SVP is found in the Dictionary of Occupational Titles. Over time, the Department of Labor has implemented and revised federal regulations in SVP in order to direct the employment system within the United States.
SVP is a detailed classification system that structures the job requirements for all fields of employment. Jobs are grouped according to the amount of time that is necessary to achieve adequate performance within a position. SVP levels were designed to consider education level, work experience, training, and other specific skills that are obtained with the intent of gaining employment. The system takes into account the time that is required to learn techniques, acquire information, and develop specific job skills. Occupations are categorized according to five "job zones" that were formulated based on the level of required experience. Each zone contains the minimum and maximum amount of experience that is allowed for the listed occupations. The experience level is determined by combing the amount of time that was accumulated while obtaining an education, specific work related experience, and various job training. In order to meet the regulations, the advertised job requirements must fall somewhere in between the minimum and maximum range allotted by SVP. Specific information about the job zones will be provided at the end of this blog.
According to the latest United States Citizenship and Immigration Services (USCIS) count, released on August 27, there were 34,900 cap eligible petitions for the H-1B regular cap, and 13,000 cap eligible petitions for the H-1B Master's exemption filed. These numbers include all approved cases as well as the cases that are still pending and under review. The USCIS issues a total of 65,000 regular H-1B visas, and an additional 20,000 visas under the advanced degree exemption for foreign employees who possess a US master's degree or higher. Regular H-1B visas enable employers to hire foreign employees with a bachelor's degree or higher who work in specialty occupations, including business- and science-related fields.
The USCIS began accepting applications on April 1, and will continue to do so until limitations have been reached. After the cap limit is reached, applicants must wait for the next fiscal year to apply. In order to ensure the consideration of petitions, applicants must make sure the petition is properly filed by completing all sections of Form I-129, including proper payment with the application and submitting all necessary documentation at the time the petition is filed.
Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it would not.
The lawyer was wrong.
Padilla pleaded guilty to a felony drug charge and received a five year sentence. It meant he would almost certainly be deported after serving his time. Padilla said later he only agreed to the deal because of his lawyer's assurance he would not be deported and appealed the decision based on his sixth amendment right to competent representation.
On March 31 the Supreme Court decided by a 7 to 2 margin that attorneys must advise non-citizen clients when there is a possibility they can be deported.
Writing on behalf of five members of the majority Justice John Paul Stevens said that "It is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the mercies of incompetent counsel."
"Deportation is an integral part," Stevens added, "indeed, sometimes the most important part - of the penalty that may be imposed on noncitizen defendants who plead guilty to specific crimes."
While Padilla's is an extreme case (he was arrested with 1,000 pounds of marijuana in his truck) the ramifications will be felt across the country.
Immigrants facing very minor legal issues could see the benefits of the court's decision. Padilla's lawyer for the Supreme Court case noted that that with 13 million legal immigrants living in the United States it is self-evident that tens of thousands will be impacted by this decision.
You don't have to look far to find cases where proper counsel would have helped legal citizens.
The September Visa Bulletin marks the end of the fiscal year (FY10), which usually coincides with the aggressive advancement of priority dates for EB2 and EB3 visas categories. The EB2 is current for all countries of chargeability with the exception of India and China. For the third month in a row, the U.S. Department of State has advanced the EB2 visas for Indian nationals, one the largest groups immigrating to the U.S. The EB2 China and EB3 All Chargeability Areas except those listed have also advanced. This is said to be due to the dwindling number of visa requests in underutilized categories due to low demand. It is expected that the advancement of cutoff dates that were seen in the last few months will retrogress substantially with the release of the November or December Visa Bulletin 2010 at the beginning of FY11.
The limit for employment-based preference immigrants for FY10 is 150,657. The limit for family-sponsored preference immigrants for FY10 is 226,000. The limit for individual countries is 7% of the total number of employment-based preference and family-sponsored preference limits, or 26,366, while the dependent area limit is 2% of the total numbers, or 7,533.
EB1 visas, Employment-Based First Preference visas, are issued by the United States Citizenship and Immigration Services (USCIS) to certain managers and executives, researchers and professors and those who have shown extraordinary ability in business, science, athletics, art or education. EB2 visas, also known as Employment-Based Second Preference visas, are issued to foreign professionals with a masters degree or higher or those who have exceptional ability in business- or science-related fields who have been offered a position from a U.S. company. EB3 visas, or Employment-Based Third Preference visas, are issued to foreign professional workers who have a bachelors degree or higher, skilled workers who have been offered positions by U.S. companies that require at least two years of training, as well as to unskilled workers who have been offered positions by U.S. companies that require less than two years of training. EB4 visas are issued to religious workers who have been active members of a religious denomination that has a nonprofit religious organization in the United States for at least the past two years. EB5 visas are issued to those who plan to immigrate to the U.S. to create employment for U.S. citizens through development and investing. Family-based preference visas also enable the spouses and children, and sometimes the siblings, of the employed person to come to the U.S. as well. Children and spouses of preference immigrants are given the same status, as well as the same order of consideration, as the family member who has applied for the employment-based visa.
The Department of State has recently confirmed the commencement of its independent verification of information contained in visa applications. Sam Shihab & Associates also confirms that some of its clients have been contacted by the Kentucky Consular Center (KCC) via contractors by telephone as part of the process. However, some of our clients complained that the questions asked were quite intrusive and were not related to the visa applications. For example, some of the questions were about company profit margins. The initial announcement of the program was on November 17, 2007 when the Department of State (DOS) and the Kentucky Consular Center (KCC) said that NIV petitions would be reviewed through a program that focused on information verification. Consular officers began to track petition information through the use of the Petition Information Management Service (PIMS) as well as the Consular Consolidated Database (CCD). The KCC audit on NIV petitions was structured to verify information and correct mistakes in the visa petition applications. One specific aspect of the audit authorized consular officers to make an unannounced phone call to the petitioner in order to obtain and verify the information that was provided to the USCIS when the visa petition was submitted. They claim that the outcome of the audit is critical in order to accurately process and further the status of visa petitions.
Along with the announcement, KCC approved fifteen contractors to individually contact petitioners. Through the embassies, KCC is responsible for reviewing the visa petitions that are obtained from the U.S. Citizenship and Immigration Services (USCIS). After the initial review process, the contractors verify and obtain the necessary information. Then, any corrections or additional steps are taken in order to advance and finalize the petition. The idea is that contractors specifically review and gather information on the petitioner as well as the beneficiary. In the past, DOS found that visa petitions were lacking important information when KCC received them from USCIS. The contractor was supposed to focus on the company website, the contact information, and the physical location of the company's office in order to ensure the validity and existence of the petitioner. The contractor also performed random phone calls to petitioners in order to gather information about the beneficiaries.
This is the conclusion to a three blog series that detailed a lawsuit which was filed in the District of Columbia Federal court challenging the new H-1B Neufeld Memo. The first three blogs discussed the complaint that was filed in court, the motion for preliminary injunction that was filed by the Plaintiffs, and the response by Homeland Security. On June 8, 2010 five specialty businesses filed a lawsuit against the United States Citizenship and Immigration Services (USCIS) in response to the Neufeld Memo. The court analyzed the points that were made by both the Plaintiffs and the Defendants. This blog will focus on the final outcome of the case which for the dismissal of the case and finding in favor of USCIS.
Upon receiving and reviewing the details of the case, the court proposed to consolidate the hearing though a determination on merits based on the Federal Rule of Civil Procedure. On July 7, 2010 both parties submitted a joint agreement based on the courts consolidation proposal. At the Motions Hearing on August 5, 2010 both parties presented their arguments. A detailed review of both parties' arguments can be found in the previous blogs. The main focus of the court was to determine whether or not the Plaintiffs had a substantial likelihood of success in their claims. The court's final classification of the Neufeld Memo, whether it is a general policy or a legislative rule, impacted the outcome of the case.
If the employer has a drug and criminal background screening policy that they place in the PERM Labor Certification advertisement, they must also include this requirement in the PERM Labor Certification application form ETA 9089, BALCA ruled. If this is not done, the Certifying Officer (CO) will conclude that the foreign national is being offered more favorable working conditions than otherwise offered to American workers and the application will be denied. It is critical that accurate information is included in the PERM application that matches the advertisement. Strict regulations are in place in order to protect the integrity of the work force as well as the advertising and hiring process. An example of this issue is a PERM Labor Certification that was filed by Noll Pallet & Lumber Company (NPLC).
On December 15, 2006 NPLC filed an Application for Permanent Employment Certification on behalf of a foreign national who was selected for a production worker position. On March 1, 2007 the CO at the U.S. Department of Labor issued an Audit Notification. The CO requested that NPLC submit more detailed recruitment documentation. NPLC provided the additional documents on March 20, 2007. On June 25, 2007 the CO denied certification because the newspaper advertisements for the position offered terms and conditions that were less favorable than those offered to the foreign national. The CO further explained that the advertisement called for criminal and background checks as well as a drug test. These specifications were not listed on the application. On July 23, 2007 NPLC requested a reconsideration stating that they had amended the issues cited by the CO. A letter of reconsideration was issued by the CO on November 5, 2008. The CO stated that the initial issue had not been corrected. As a result, the certification was denied.
Generally in response to a Department of Labor PERM Labor Certification audit, the employer must provide specific documents that show that the proper recruitment steps were followed. If certain supporting documentation is missing, the Certifying Officer (CO) may deny certification, unless the attorney can show that the recruitment steps were actually followed and not including the supporting documentation was an inadvertence. An example of this kind of review is a PERM Labor Certification filed by Clearstream Banking (Clearstream).
Clearstream filed an Application for Permanent Employment on behalf of a foreign national who was selected for an account manager position. In the application, it stated that the job was advertised with the company's employee referral program from July 26 to September 30, 2006. Having a referral program which pays an incentive for employees to refer potential candidates to the employer is one of the permitted recruitment steps in a PERM Labor Certification. However, the availability of the program must be posted and made known to the employees. On December 14, 2006 the CO issued an audit requesting additional recruitment documentation. Clearstream sent the documents on January 10, 2007. On January 30, 2007 the CO denied certification because Clearstream failed to provide documentation about the use of the employee referral program during recruitment. On February 22, 2007 Clearstream requested that the CO review the denial. The attorney for Clearstream openly acknowledged that the specific document highlighting the referral program had been unintentionally left out of the documentation that was sent in response to the audit. However, the attorney emphasized that the omission of the one document should not reflect negatively on the validity of Clearstream's recruitment practices. The recruitment process had been completed and recorded according to strict regulation standards. Although the document explaining the employee referral program was not supplied to CO, there were other documents that supported the validity of the program. The recruitment report states that the employees were made aware of the program as well as the incentives associated with the position. The report was also signed by the Senior Manager and notarized. The attorney explained that the recruitment report should account for the documentation needed to assess the recruitment program. The CO issued a letter of reconsideration on October 2, 2008. The CO concluded that Clearstream had failed to provide the necessary documentation that was requested in the audit. The CO explained that there was not sufficient documentation including employee notices or information about the available incentives. As a result, the certification was denied.