Immigration Visa Attorney Blog

Employees whose work requires them to continually travel to different work locations, typically called roving employees, requires special attention during the labor certification process. If an Employee works a short period in Columbus, Ohio then moves to Troy, Michigan and then to Dublin, Ohio in one year, this employee is a roving employee in all likelyhood. Normally, a labor certification is filed in the area of intended employment in order to test the U.S. labor market for qualified workers in that area. Arguably, if a foreign national's work location is constantly changing, it becomes difficult to properly test the appropriate labor market and certify there are no qualified employees available to fill the position. If an employee's work location changes after the labor certification and the employer has no intention of returning the employee to the labor certification work location, the labor certification may no longer be valid.

There are certain exceptions for roving employees, but the Department of Labor (DOL) and United States Citizenship and Immigration Services (USCIS) have indicated they review such applications with heightened scrutiny, especially when an employer is downsizing or laying off employees. Thus, it is of utmost importance to ensure all PERM recruitment steps are precisely followed and roving employee issues are preemptively addressed in the I-140 Immigrant Petition for Alien Worker. Employers need to conduct their labor certification recruitment in strict compliance with the PERM regulations or risk drawing the DOL's attention to the case, possibly resulting in supervised recruitment.

A primary concern for roving employees is where the Notice of Filing should be posted. The DOL has indicated that if the employer does not know where the employee's work location will be, a Notice of Filing should be placed at each of the employer's current client worksites. If the employer does know where the employee will be working, the Notice of Filing can be limited to those work locations. Another concern is what prevailing wage should appear on the Notice of Filing. In the situation of roving employees, the prevailing wage should be derived from the area of the petitioner's headquarters.

It is important to keep in mind that an employer's obligation to employ the foreign national employee at the work location specified in the labor certification does not begin until the employee receives their green card. Thus, it will likely be years before the foreign national employee is required to remain permanently at the worksite listed on the ETA 9089 application. Until that time, the foreign national employee can continue to work at various locations as a roving employee. The fact that the employee is not working at the location specified in the ETA 9089 application may cause the USCIS to inquire at the I-140 stage and it is best to preemptively explain such issues in the I-140 Immigrant Petition for Alien Worker.

The PERM process exists to test the U.S. labor market for qualified U.S. workers that could fill a permanent position prospectively being offered to a foreign national. The purpose of PERM labor certification is to establish that the foreign national employee is the only individual with the necessary combination of education and experience for the position who is willing and able to accept the job opening within the employment geographic area. For more information visait PERM FAQ's on our website.

If the foreign national employee gained all or part of their experience in a position with the sponsoring employer, it is arguable that a U.S. worker could have gained that same experience with the employer. To address this issue, the PERM regulations require that any experience gained by the foreign national employee with the petitioning employer be gained in a position that is "not substantially comparable to the position for which certification is being sought." This includes any positions the foreign national has held as a contract employee with the sponsoring employer.

The PERM regulations define substantially comparable as "a job or position requiring performance of the same job duties more than 50 percent of the time." Despite this definition, it can be difficult for employers to determine what constitutes a substantially comparable position. Employers should examine the core skills and responsibilities of the positions, as well as the job duties. One method for assessing whether two positions are substantially comparable is to compile a list of the job duties for each position, including the amount of time the foreign national spends on each duty. If the job duties and time dedicated to each largely overlap, it is likely that the two positions are substantially comparable. It is highly recommended that sponsoring employers consult with experienced immigration counsel regarding whether two positions are substantially comparable to avoid irreparable issues at the I-140 stage.

Continue reading "Labor Certification Attorney On Experience Acquired With The Same Employer" »

This is one of multi-blog series about degree requirements and equivalency in PERM Labor Certification. Additional PERM FAQ's are available on our website.

Overview:

A U.S. employer that wishes to sponsor a foreign national employee for a permanent position must usually establish that there are no qualified U.S. workers to fill the position. The PERM process was developed as a method for testing the U.S. labor market for qualified workers and, as part of the process, the U.S. employer must outline the minimum educational and experience requirements for the position. If no qualified U.S. workers are found, the foreign national being sponsored for the position must demonstrate, at the I-140 stage, that they meet the qualifications for the position as stated in the U.S. employer's recruitment. As not all educational systems are created equally, it is incumbent upon the foreign national to sufficiently establish that their foreign degree is equivalent to the required U.S. degree. Degree equivalency can also be extremely important when determining a foreign national's employment-based preference category and, essentially, their place in line for a green card.

Second Preference Category

To qualify for the second employment-based category, a foreign national must have the equivalent of a U.S. Master's degree or Bachelor's degree plus five years of progressive, post-baccalaureate experience. As a general rule, a combination of 6 years of graduate and undergraduate education that culminates in a Master's degree will be considered the equivalent of a U.S. Master's degree. Such combinations could include 4 years of undergraduate education and 2 years of graduate education, 3 years of undergraduate education and 3 years of graduate education, or 3 years of undergraduate education, a 1 year post-graduate diploma and 2 years of graduate education. Ultimately, it is important that the foreign national's transcripts and dates of attendance reflect 6 full years of education, resulting in the award of a Master's degree.

Third Preference Category:

Foreign Nationals may qualify for third employment-based category if they have at least of two years of experience. If a deree is required for the position, a foreign Bachelor's degree must be evaluated to ensure it is the equivalent of a U.S. Bachelor's degree. In some countries, a Bachelor's degree can be completed in only 3 years and, thus, may not be considered equivalent to a U.S. Bachelor's degree which requires 4 years of study. To be the equivalent of a U.S. Bachelor's degree, the foreign degree must consist of equivalent to 4 years of undergraduate education which culminates in a single-source Bachelor's degree. The foreign national must have transcripts reflecting 4 full years of education, as well as dates of attendance, that result in a single-source Bachelor's degree.

Continue reading "Labor Certification Attorney Explains PERM Degree Equivalency Issues: An Introduction " »

Due to the difficult economic conditions, the Department of Labor has hinted that it will implement supervised recruitment on more cases going forward. This, in essence, rolls back the clock five years on the progress made in streamlining the Labor Certification process under PERM. Currently, the PERM labor certification process is an audit based system. This means that the application under PERM is filed without supporting documentation and DOL either randomly or based on trigger system audits the applications for compliance.

While not all cases will be processed under supervised recruitment, larger percentage of cases will be subject to this process. Supervised recruitment is spelled out in 20 CFR 656.21. Pursuant to the regulations, it gives the Certifying Officer the choice of requesting a supervised recruitment process. The Certifying Officer is the person with the responsibility of issuing labor certification. The practical impact is a slower process. Under the supervised recruitment, there are additional steps to be undertaken, not required by PERM, and they are summarized below.

Continue reading "Labor Certification Supervised Recruitment is Coming your Way Soon" »

Any Ohio labor certification attorney will tell you that prevailing wage determinations in Ohio have been consistently higher than other states for years. In a recent decision The Board of Alien Labor Certification Appeals (BALCA) in the matter of Reed Elsevier, Inc., 2008-PER-00201 agrees. The prevailing wage is the wage determined by the state agency to be paid to a foreign national if they are to obtain an employment based green card through labor certification. In reversing The Certifying Officer affirmation of a prevailing wage determination, the court stated that Ohio "drastically changes the character of the position, essentially increasing the yearly wage by over 25% and doubling the wage level at which the position would otherwise be classified."

The court affirmed that Ohio has improperly upgraded the wage requirement to the highest possible level (level IV) by incorrectly combining experience and education in its analysis. In the case decided, , a level IV wage was assigned to an Engineering position because the employer required a Masters Degree plus one year of experience. BALCA's ruling states that the proper wage level for this type of position with the aforementioned requirements should have been equivalent to a level II wage.

Continue reading "Ohio Labor Certification Prevailing Wage Level Improperly Doubled, Court Rules" »

There has been a recent spike in Requests for Evidence in adjustment cases questioning the intended work location of the foreign national and seeks confirmation of the permanent employment offer. The typical inquiry questions the intended place of permanent employment when USCIS observes, after reviewing the adjustment application, that the foreign national may be working in a different work location than the one listed in the approved labor certification.

It is important to note that, employer's obligation to place the foreign national at the work location represented in the labor certification begins no earlier than the time the adjustment of status is approved. As such the employee/ foreign national may be located at other locations during the pending green card process. But the general rule regarding work locations is that if the intended place of employment changes, it renders the certified labor certification invalid, resulting in a denial of the adjustment of status. The exception is roving employees where the labor certification will be filed reflecting the employment location where the company headquarters is located, or in instances where the employee - foreign national is working for a different employer and is taking advantage of the American Competitiveness In The Twenty-First Century Act of 2000 (AC21) .

If the foreign national is working for a different employer and the adjustment of status has been pending for more than 180 days, then the work location may be anywhere in the US, so long as the AC21 guidelines are followed. Namely, the job is of the same or similar occupational classification. Note that the body of AC21 law interpretations and administrative memos addressing its applications and limitations is growing in complexity. As such, it is critical to consult with a competent immigration attorney before accepting a job offer from another employer to ascertain that the job change will preserve the pending green card application.

Construction & Design Co. v. USCIS: The Seventh Circuit Court of Appeals on 04/21/2009 affirmed the denial of an Immigrant Visa Petition based on finding of lack of financial ability. It also criticized USCIS for not being able to distinguish between "accounting entities" and "cash flow." Although this case is not a total victory for the arbitrary USCIS guidelines on determining financial ability in Labor Certification cases, it may be one of the early steps in a long road to change. The court explained that "because tax considerations drive a wedge between accounting income and economic income, a company's tax returns are not a reliable basis for determining whether the company can afford to hire another employee. "

In this case the employer, a small company, sought to hire a foreign national that it has long used as an independent contractor. The difficulty the Plaintiff has run into in this case is that it did not explain why it will be paying the beneficiary twice as much salary as an employee as it is it is paying him as an independent contractor. Further the Plaintiff did not explain how it will be coming up with additional funds. The court went on to suggest that forms of acceptable explanations that are better than using Tax returns or a net asset calculations would have been that they have landed new contracts, or they have raised capital, or evidence that the new employee will generate additional revenues that covers his salary. Another possible explanation the court listed as acceptable is that the beneficiary would be working longer hours thus generating more revenue for the company as an employee.

The court explained that profitable companies might have no taxable income for various tax related consideration and it does not follow that they are unable to add or pay for an employee.