leXpeak-Immigration

PERM Prevailing Wage RFIs: A New Focus on "Unanticipated Locations"

2024-06-05T08:29:00.002-04:00

The PERM process for green card sponsorship is already notorious for its complexity, and a recent uptick in Requests for Further Information (RFIs) is adding another layer for employers to navigate. Specifically, the Department of Labor (DOL) is scrutinizing the frequency of visits to "unanticipated locations" for certain positions. Let's break down what this means and why it matters.

The RFI in Question

The DOL is increasingly issuing RFIs that ask:

How often does the beneficiary travel to unanticipated locations?
What percentage of their time is spent at these locations?
What activities are performed at these locations?

This line of inquiry is particularly common for positions involving travel, such as IT consultants, sales professionals, or field engineers.

The Farmer Memo and Its Significance

The "Farmer MemoFarmer Memo" (published in 1994 by the DOL) provides guidance on determining the work location for PERM purposes. For roles involving travel to unanticipated locations, the memo states that the employer's headquarters (or a home office) should be the designated work location. This is because the employer can't reasonably predict where the beneficiary will be traveling.

The Disconnect

The recent RFIs seem to contradict the Farmer Memo's guidance. By asking about the frequency of visits to unanticipated locations, the DOL implies that these locations could be the actual worksite, not the headquarters. This is problematic because:

It creates uncertainty: Employers are left wondering whether to list the headquarters or the most frequent travel location as the worksite.
It increases the risk of audits: Inconsistent information between the PERM application and the RFI response could raise red flags for the DOL.
It impacts prevailing wage determination: The work location directly affects the prevailing wage level assigned to the position.

What Employers Should Do

If you receive an RFI asking about unanticipated locations, here's how to approach it:

Review the Farmer Memo: Familiarize yourself with its guidance on work locations for positions involving travel.
Consult an immigration attorney: Seek expert advice on how to respond to the RFI accurately and effectively.
Gather detailed information: Collect data on the beneficiary's travel patterns, including frequency, duration, and activities performed at each location.
Emphasize the headquarters: In your RFI response, clearly state that the headquarters is the designated worksite and explain how the travel fits within the job duties.

The Bigger Picture

This increased scrutiny of "unanticipated locations" is part of a broader trend of the DOL tightening PERM regulations. It's crucial for employers to stay informed about these changes and work with immigration professionals to ensure compliance and avoid delays in the green card sponsorship process.

Let me know if you'd like any other sections added or expanded on.

F and M student visas can now be issued up to 365 days in advance of the I-20 program start date

2023-03-06T10:38:00.003-05:00

The U.S. Department of State updated its guidelines allowing F and M students to apply for their student visas to study in the United States up to 365 days prior to the start date of the program as listed on the Form I-20. The Form I-20 will be issued twelve to fourteen months ahead of the program start date. However, Students applying for F and M visas will be allowed to enter the United States up to 30 days before their program start date.

As you may be aware, earlier the students were not permitted to schedule visa interview appointments more than 120 days prior to the program start date as listed on the Form I-20. Additionally, the I-20 forms could not be issued by educational institutions more than four to six months ahead of the program start date.

New USCIS Policy June 24, 2022 on 3–/10-Year Unlawful Presence Bars

2022-08-02T08:02:00.006-04:00

In this blogpost we’ll discuss New USCIS guidance dated June 24, 2022.

The guidance states that “a noncitizen who again seeks admission more than 3 or 10 years after the relevant departure or removal, is not inadmissible under INA §212(a)(9)(B) even if the noncitizen returned to the United States, with or without authorization, during the statutory 3-year or 10-year period.”

Note that the new guidance does not address or otherwise eliminate inadmissibility issues due to the permanent bar at INA §212(a)(9)(C) or the inspection and admission requirement for adjustment of status, notwithstanding the reference in the policy to a return to the United States “without authorization.”

The new guidance confirms that location of the person does not matter which means the bars can be served in whole or in part inside the United States. Specifically, the noncitizen’s manner of return to the United States during the statutory 3-year or 10-year period are irrelevant for purposes of determining inadmissibility under INA §212(a)(9)(B).”

The current process for pursuing the §212(d)(3) waiver (“d3 waiver”) typically requires spending at least several months abroad waiting for a decision, as the waiver application can generally only be submitted at or after the consular interview after which it is forwarded by the consulate to the CBP Admissibility Review Office for further processing. An approved §212(d)(3) waiver removes that bar for temporary visa purposes, allowing the DREAMer to apply for a nonimmigrant visa, such as an H-1B, at a consulate or port of entry, and then (if the visa is granted) enter the United States in valid nonimmigrant status with work authorization.

Similarly, a noncitizen who was admitted to the United States but overstayed may be eligible for permanent residence through marriage to a U.S. citizen without having to go to his/her home country.

In addition, an undocumented foreign national who qualifies for adjustment of status pursuant to §245i may be able to seek a green card in the United States through an employer-sponsored petition or a family-based petition.

H-1B mistakes that cost Employers

2022-07-27T13:15:00.001-04:00

· Can the foreign national pay H-1B fees?

The short answer is “NO”. A foreign national must not pay any fees associated with H-1B (with few exceptions). Authorized H-1B deductions are clearly indicated in the DOL fact sheet. See https://www.dol.gov/agencies/whd/fact-sheets/62h-h1b-pay- deductions

Premium Processing fee is not that clear. Fundamental rule is that the employer expense cannot be passed to the beneficiary. However, where the employer had objected to paying the premium processing fee, and premium processing was requested at the nonimmigrant’s behest, the expense was found not to be an employer expense.

· Penalties for forcing H-1B employee to stay employed?

Employers are prohibited from requiring an H-1B employee to pay a penalty for ceasing employment prior to an agreed-upon date unless DOL finds that the amount constitutes liquidated damages under relevant state law.

For the amount to be considered liquidated damages, DOL requires that it meet the five criteria for deductions from wages and that it conform to the applicable state law for liquidated damages. Generally the five criteria include:

i. Are amounts “fixed or stipulated by the parties at the inception” of the

employment agreement;

ii. Are “reasonable approximations or estimates of the anticipated or actual damage caused to one party by the other party’s breach of the contract”;

iii. Take into account the respective power and relationship of the parties, so that

fraud or oppression by one party results in the amount being considered a prohibited penalty rather than liquidated damages; and

iv. Require that the stipulated amount take into account whether the breach is total or partial—in other words, account for the percentage of the agreed duration of employment that was completed. (

· Bona Fide H-1B Terminations and Employer Steps to End the Pay Obligations. Is a Flight Home Required?

a. “Prohibition Against ‘Benching’

i. Payment obligations cease where there has been a “bona fide termination of the employment relationship.” Rather than define this term, the DOL regulation passively states that “DHS regulations require the employer to notify the DHS that the employment relationship has been terminated so that the petition is canceled and require the employer to provide the employee with payment for transportation home under certain circumstances.

ii. Administrative appeal decisions have found that to show a bona fide termination,

an employer should “demonstrate that it:

(1) expressly terminated the employment relationship with the H-1B worker;

(2) notified USCIS of the termination so that the petition could be cancelled; and (3) provided the worker with the reasonable cost of return transportation to his or her home country.”

Note: If the employer notifies DHS of a termination, but behaves in a way that suggests an ongoing employment relationship, DOL may conclude that a bona fide termination has not occurred.

USCIS rescinds Trump-era memo on computer programmers

2022-03-06T00:27:00.000-05:00

Way Memo - 2000. Click here

Trump memo - 2017. Click here

Biden Memo - 2021. Click here

SUMMARY

The panel reversed the district court’s grant of summary judgment for the U.S. Citizenship and Immigration Services (USCIS), and remanded, concluding that USCIS’s denial of an H-1B temporary worker visa was arbitrary and capricious.

Innova Solutions, Inc. (Innova) wanted to hire a citizen of India with a bachelor’s degree as a computer programmer and petitioned for an H-1B “specialty occupation” visa on his behalf.

Under the relevant regulation, Innova had to establish that a “baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.” Although the Department of Labor’s Occupational Outlook Handbook (OOH) provides that “[m]ost computer programmers have a bachelor’s degree,” and that a bachelor’s degree is the “[t]ypical level of education that most” computer programmers need, USCIS concluded that “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required.”

Innova challenged USCIS’s denial of the visa in district court under section 706 of the Administrative Procedure Act, contending that the decision was arbitrary and capricious. The district court rejected that argument and granted summary judgment for USCIS, concluding that “the OOH description for the Computer Programmer occupation does not describe the normal minimum educational requirements of the occupation in a categorical fashion” because “at least some Computer Programmer positions may be performed by someone with an associate’s degree.”

The panel concluded that USCIS’s denial of the H-1B visa petition was arbitrary and capricious.

First, the panel explained that there is no daylight between typically needed, per the OOH, and normally required, per the regulation, and that USCIS’s suggestion that there is “space” between these words is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The panel also explained that the regulation is not ambiguous and deference to such an implausible interpretation is unwarranted.
Next, the panel concluded that USCIS’s decision was arbitrary and capricious because it misrepresented the OOH by stating that it provides that most computer programmers have a bachelor’s or associate’s degree when, in fact, the OOH provides that most have a bachelor’s degree.
Finally, the panel concluded that USCIS’s decision as arbitrary and capricious because USCIS failed to consider key evidence, namely, the OOH language providing that a “bachelor’s degree” is the “[t]ypical level of education that most workers need to enter this occupation.”

Analysis

USCIS’s decision in light of that evidence was arbitrary and capricious. Mirroring the regulatory language, the decision explains: “the OOH does not state that at least a bachelor’s degree or its equivalent in a specific specialty is normally the minimum required for entry into the occupation.” Although the OOH, a career education resource published by a different agency, did not use the precise language of the H-1B regulation, it made clear that a bachelor’s degree is not only common but typically needed. There is no daylight between typically needed, per the OOH, and normally required, per the regulatory criteria. “Typically” and “normally” are synonyms. Normally, Merriam-Webster Thesaurus, https://www.merriam- webster.com/thesaurus/normally. The Supreme Court uses these words interchangeably in the same sentence.⁵ So do we.⁶ So does the United States Solicitor General.⁷ And so does the federal government.⁸
USCIS’s contrary reasoning is beyond saving. There is no “rational connection” between the only source USCIS cited, which indicated most computer programmers have a bachelor’s degree and that a bachelor’s degree is typically needed, and USCIS’s decision that a bachelor’s degree is not normally required. See Dep’t of Com., 139 S. Ct. at 2569 (citation omitted); Next Generation Tech., Inc. v. Johnson, 328 F. Supp. 3d 252, 267 (S.D.N.Y. 2017) (noting that the court “is at a loss to see a ‘rational connection’” in the same context). USCIS’s suggestion that there is “space” (which we understand to connote a difference in meaning) between these words is “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Defs. of Wildlife, 551 U.S. at 658 (citation omitted). While it is theoretically possible that there is “space” between normally, most, and typically, that space is at best molecular, and nowhere near big enough for the doublespeak freight train that USCIS tries to drive through it.
In response, USCIS points to OOH language stating that “some employers hire workers with an associate’s degree.” But the fact that some computer programmers are hired without a bachelor’s degree is entirely consistent with a bachelor’s degree “normally [being] the minimum requirement for entry.” 8 C.F.R. § 214.2(h)(4)(iii)(A)(1) (emphasis added); see also Taylor Made Software, Inc. v. Cuccinelli, 453 F. Supp. 3d 237, 246 (D.D.C. 2020) (“[USCIS] cannot simply rely on the OOH’s recognition that an unspecified number of contrary cases exist. That is not a rational treatment of the language in the OOH.”) Normally does not mean always.[1] See Normally, Cambridge Dictionary (2019), https://dictionary.cambridge.org/us/dict ionary/english/normally (defining “normally” as “usually or regularly” and “usually, or in most cases” (emphasis added)); see also United States v. Corey, 232 F.3d 1166, 1180 (9th Cir. 2000) (distinguishing “normally” from “always”); Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1488 (9th Cir. 1992) (same); 5 C.F.R. § 551.202(h)(same). While agencies are entitled to deference in interpreting their own ambiguous regulations, this regulation is not ambiguous and deference to such an implausible interpretation is unwarranted. See Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019) (limiting Auer deference to regulations that are “genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation”); Mejia v. Ashcroft, 298 F.3d 873, 878 (9th Cir. 2002) (noting that an agency “does not have the discretion to misapply the law.”). USCIS’s unreasonable reading of the regulatory language here is therefore arbitrary and capricious. See Salehpour v. INS, 761 F.2d 1442, 1447 (9th Cir. 1985) (“Where the objective criteria of a regulation are clearly met, there is no room for an agency to interpret a regulation so as to add another requirement.”).
On appeal, USCIS tries to distance itself from the “authoritative source” upon which it chose to rely exclusively in its decision. USCIS contends that the OOH alone cannot establish “whether an occupation qualifies per se as a specialty occupation” because “[i]n some instances, as with the Computer Programmer occupation here, it is not a sufficient source of information.” In other words, where the OOH states that some positions do not require a bachelor’s degree, USCIS does not consider the OOH a “sufficient source of information.” That argument is related to the basis for the district court’s decision: because some computer programmers are hired with associate’s degrees, Innova “had the burden to show that the particular position offered to Mr. Dodda was among the Computer Programmer positions for which a bachelor’s degree was normally required.”
These arguments are flawed. First, by demanding additional proof anytime some positions within an occupation require less than a bachelor’s degree, USCIS again improperly equates “normally” with “always.” These contentions also misconstrue the regulation and flout USCIS’s own approach to applying it. While it is true that the regulation refers to the requirement of a bachelor’s degree “for entry into the particular position,” 8 C.F.R.§ 214.2(h)(4)(iii)(A)(1) (emphasis added), USCIS determined that Dodda’s “particular position” is indeed computer programmer, and not a sub-group within that classification. As USCIS told the district court, this is the first of two steps in USCIS’s analysis of the first regulatory criterion.
Second, “the agency categorically determines whether the educational requirements of that occupation group in the OOH normally requires for entry at least a bachelor’s degree in a specific specialty.” Therefore, by USCIS’s own admission, showing that the matching occupational group in the OOH normally requires a bachelor’s degree satisfies the regulation. No additional proof about whether the position falls within some sub-group is required. By requiring Innova to show its “particular position . . . was among the Computer Programmer positions for which a bachelor’s degree was normally required,” the district court’s ruling functionally requires visa petitioners to demonstrate that their particular position actually requires a bachelor’s degree. That approach is plainly inconsistent with the language of the first regulatory criterion and USCIS practice. Moreover, it conflates the first criterion, which only asks whether the position normally requires a bachelor’s degree, and the third criterion, which asks whether the employer normally requires a bachelor’s degree for the position. Compare 8 C.F.R. § 214.2(h)(4)(iii)(A)(1), with id. § 214.2(h)(4)(iii)(A)(3). And as both parties acknowledge, the four criteria are independent—a petitioner need only satisfy any one criterion to establish that a position is in a “specialty occupation.” Id. § 214.2(h)(4)(iii)(A).
USCIS’s decision was also arbitrary and capricious because in misrepresenting the OOH, it “offered an explanation for its decision that [ran] counter to the evidence before [it].” Defs. of Wildlife, 551 U.S. at 658 (citation omitted). We have required agency decisions to accurately reflect the evidentiary record. See Cerrillo-Perez v. INS, 809 F.2d 1419, 1422 (9th Cir. 1987) (“[W]hen important aspects of the individual claim are distorted or disregarded, the BIA has abused its discretion.” (internal quotation marks and citation omitted)).
According to the USCIS decision, the OOH stated that “the [computer programmer] occupation allows for a wide range of educational credentials, including an associate’s degree to qualify.” But rather than suggesting a “wide range,” the OOH stated: “Most computer programmers have a bachelor’s degree in computer science or a related subject; however, some employers hire workers with an associate’s degree.” The USCIS decision continues: “the OOH indicates that most computer programmers obtain a degree (either a bachelor’s or an associate’s degree) in computer science or a related field.” But as the district court acknowledged, that “mischaracterizes the OOH.” The OOH did not state that most computer programmers have either a bachelor’s or an associate’s degree, but rather that most “have a bachelor’s degree in computer science or a related subject.”
While a factual error is not necessarily fatal to an agency decision, whether most programmers have a bachelor’s (as opposed to either a bachelor’s or associate’s) degree is the core question upon which USCIS’s determination here hinged. Because we may only affirm on the basis provided by the agency, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), and in any case, the agency has not disavowed this view, this serious misconstruction of the only source considered was arbitrary and capricious.
Finally, USCIS failed to consider key evidence. A decision is arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.” Defs. of Wildlife, 551 U.S. at 658 (citation omitted). “We will defer to an agency’s decision only if it is ‘fully informed and well-considered.’” Sierra Club v. Bosworth, 510 F.3d 1016, 1023 (9th Cir. 2007) (citation omitted). The OOH listed “bachelor’s degree” as the “[t]ypical level of education that most workers need to enter this occupation.” That language speaks directly to the question whether a bachelor’s degree is normally required for computer programmers. Indeed, it preempts USCIS’s core argument on appeal: that “there is a difference between workers in a particular occupation ‘having’ a degree and what the industry (including other employers) normally ‘requires,’” and that the OOH only establishes the former. Despite appearing at the top of the OOH’s landing page for computer programmers, this OOH language was not mentioned anywhere in USCIS’s decision. USCIS’s failure to consider evidence so central to the inquiry is yet another (and independent) reason why its decision was arbitrary and capricious, and why we must reverse.

REVERSED AND REMANDED.

[1] That USCIS recently issued an interim final rule amending this regulation to delete the word “normally” from the first criterion so that that a bachelor’s degree is “always the requirement” for the occupation confirms this common sense reading of the prior regulatory language. See 85 Fed. Reg. at 63,926. As discussed above, this amendment does not impact the instant appeal.

Definition of US Worker

2020-12-16T09:28:00.001-05:00

U.S. workers, under Department of Labor rules, are work-authorized individuals who have indefinite work authorization not tied to a specific employer, including U.S. citizens and nationals, lawful permanent residents, refugees, and asylees. 20 C.F.R. § 656.3.

Neufeld's 2009 Memo - ‘‘Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act’’

2020-11-09T08:32:00.004-05:00

available at https:// www.uscis.gov/sites/default/files/USCIS/Laws/ Memoranda/Static_Files_Memoranda/2009/ revision_redesign_AFM.PDF.

or Click here

Summary of the April 22, 2020 U.S. President’s Proclamation Suspending Entry of certain Immigrants

2020-04-23T00:36:00.001-04:00

The proclamation becomes effective on Thursday, April 23, 2020 at 11:59 PM (ET), and suspends the entry of any individual seeking to enter the U.S. as an immigrant who:

● Is outside the United States on the effective date of the proclamation;

● Does not have a valid immigrant visa on the effective date; and

● Does not have a valid official travel document (such as a transportation letter, boarding foil, or advance parole document) on the effective date, or issued on any date thereafter that permits travel to the United States to seek entry or admission.

The following categories are exempted from the proclamation:

1. Lawful permanent residents (LPR)

2. Individuals and their spouses or children seeking to enter the U.S. on an immigrant visa as a physician, nurse, or other healthcare professional to perform work essential to combatting, recovering from, or otherwise alleviating the effects of the COVID-19 outbreak (as determined by the Secretaries of State and Department of Homeland Security (DHS), or their respective designees)

3. Individuals applying for a visa to enter the U.S. pursuant to the EB-5 immigrant investor visa program

4. Spouses of U.S. citizens

5. Children of U.S. citizens under the age of 21 and prospective adoptees seeking to enter on an IR-4 or IH-4 visa

6. Individuals who would further important U.S. law enforcement objectives (as determined by the Secretaries of DHS and State based on the recommendation of the Attorney General (AG), or their respective designees)

7. Members of the U.S. Armed Forces and their spouses and children

8. Individuals and their spouses or children eligible for Special Immigrant Visas as an Afghan or Iraqi translator/interpreter or U.S. Government Employee (SI or SQ classification)

9. Individuals whose entry would be in the national interest (as determined by the Secretaries of State and DHS, or their respective designees).

Note –

1. the proclamation requires that within 30 days of the effective date, the Secretaries of Labor and DHS, in consultation with the Secretary of State, shall review nonimmigrant programs and recommend to the President other appropriate measures to stimulate the U.S. economy and ensure “the prioritization, hiring and employment” of U.S. workers.

2. The proclamation expires 60 days from its effective date and may be continued as necessary. Within 50 days from the effective date, the Secretary of DHS shall, in consultation with the Secretaries of State and Labor, recommend whether the President should continue or modify the proclamation.

Click This link for White house proclamation

Shortcuts for BALCA appeal

2018-10-10T09:25:00.000-04:00

Motion to Remand

A motion to remand may be appropriate when the sole issue in a pending opinion has already been settled in one or more BALCA cases. Before filing the motion, 29 C.F.R. section 18.33(c)(3) requires

A written motion before hearing must state that counsel conferred, or attempted to confer, with opposing counsel in a good faith effort to resolve the motion’s subject matter, and whether the motion is opposed or unopposed.

Motion to Expedite

In limited circumstances, BALCA will process cases out of order for humanitarian reasons or other compelling circumstances. An employer can request a Motion to Expedite after completing the confer/notify requirement to OFLC as cited above.10 Matter of Sunnyvale School District provides a good example of factors considered by BALCA in considering a Motion to Expedite.

Motions for En Banc Review

While not related to the speed of adjudication, another motion to consider is a Motion for En Banc Review. BALCA en banc decisions are binding on OFLC. BALCA is currently considering changes to the procedure by which it grants requests for en banc review. The current procedures are outlined in a memo dated July 19, 2017.12 Either the employer or OFLC can request en banc review. When a request is made, BALCA informs OFLC and the PERM is reopened for the brief period of time it takes BALCA to grant or deny review. Generally, en banc review is considered to ensure uniformity in decisions or if the proceeding involves a question of exceptional importance. Presently, BALCA tends to grant en banc review in a very small number of cases

Recent Memo's that severely impacts employment based Immigration

2018-08-29T13:47:00.002-04:00

03/22/2018: AAO Decision of 03/19/2018 Affecting EB-1C Immigrant Seekers Leaving the Foreign Employers for Their Non-immigrant Stay in the United States for Two Years

2018-08-29T13:04:00.002-04:00

Courtesy - OH LAW

Matter of S-P-, Inc., Adopted Decision 2018-01 (AAO Mar. 19, 2018) clarifies that a beneficiary who worked abroad for a qualifying multinational organization for at least one year, but left its employ for a period of more than two years after being admitted to the United States as a nonimmigrant, does not satisfy the one-in-three foreign employment requirement for EB-1C immigrant classification as a multinational manager or executive. On the same day of March 19, 2018, the USCIS issued a Policy Memorandum adopting this decision as "precedent" binding decision for any future cases. Read on.
For the last few years, the number of immigrants using this EB-1C classification has steadily increased, affecting EB-1 immigrant visa numbers backlog for Indians and Chinese. This precedent and binding decision will somehow affect some of them who stay here for two years after their leaving from their employers in their home countries.

Scrivener Error

2016-08-10T16:17:00.000-04:00

Below is the extract from USCIS/SCOPS teleconference Agenda dated July 27, 2016 related to Scrivener Error

Although a petitioner may ask USCIS to correct a clerical error, whether the correction will actually be made is based on the totality of the record. (If the request to change the category is denied, note that an amended I-140 can be filed even if the Labor Certification has expired, as long as the original I-140 had been filed during the Labor Certification’s validity period.) Such requests cannot be granted for petitions that have already been adjudicated. For more information, read the USCIS website on “Petition Filing and Processing Procedures for FormI-140.”

Provisional Degree cert. is enough

2016-06-07T09:29:00.002-04:00

ACCRAO EDGE (Electronic Database for Global Education) recommends that the Provisional Degree Certificate, offered in India, Pakistan, and Bangladesh, can be accepted as evidence of completing all requirements for the degree in question, the name of the degree, and the date upon which it was approved by the responsible university governing body.

See the letter here

PARENTAL I-130 & I-485Document Checklist

2015-02-27T09:40:00.001-05:00

Note: This list is for U.S. citizens who are petitioning for their foreign parent/s.

q Proof of Petitioner’s Status

o Birth Certificate (U.S.)

o Passport (U.S.)

o Naturalization certificate

q G-325A Biographic Information

o Petitioner

o Beneficiary

q Appropriate Photographs (Permanent Residence or “Green Card” style)

o Two photographs of the USC

o Two photographs of the foreign parent

o Photograph instructions at

o http://travel.state.gov/content/passports/english/passports/photos/photos.html

q Evidence of Parental relationship

o A copy of your birth certificate showing your name and your parents name

o A copy of your parents’ civil marriage certificate

o Copy of your marks card indicating any of your parents name.

o Copy of your previous passport indicating your parents name.

o Any other proof showing establishing your parents.

q For Financial support

o Form I-864 Affidavit of Support

o US federal tax return for the most recent filing year with copies of any Form 1099 or W-2.

o US federal tax returns for an additional two years. (if any)

o Pay stubs for the previous three months.

o Employment verification letter: The letter must include your full name, salary, job title, and start date. It should be printed on company letterhead, include the address and telephone number of the company, and be signed by an authorized company representative.

q Others

o Copy of the PARENTS valid passport and any expired passports.

o Medical exam in a sealed envelope

o Copies of current and previously issued US visas and other related immigration documentation (e.g., Forms I-797 Approval Notices, Forms I-20 or DS-2019, Employment Authorization Documents, and Forms I-94) or automated Forms I-94 obtained online here.

GOOD NEWS !!! EMPLOYMENT AUTHORIZATION (EAD) FOR CERTAIN H-4 DEPENDENT SPOUSES

2015-02-27T09:38:00.001-05:00

Friends - USCIS has released announcement that certain H-4 dependent spouses will be eligible to work beginning from May 26, 2015. Those eligible H-4 dependent spouses are:

Who is eligible

· The principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or

· The H-4 dependents of H-1B nonimmigrant who have extended their H-1B status beyond the usual six-year limit based on an approved I-140 or based on 365 days or more have elapsed since the filing of a labor certification under AC21 guidelines.

How to file for Employment Authorization

The above indicated H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee starting from on May 26, 2015 in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD) to begin working.

Class Action against Infosys for Discrimination against American Workers

2013-08-06T09:17:00.002-04:00

It's just ridiculous !! I am not backing Infosys without basis, just look at the facts in the case file here. Basically, the requirement of any job position is known only to the employer. An applicant cannot claim that just because she/he was rejected for the job position implies that they have bad recruiting practices.

One thing sure, bad time for Infosys !!

Summary of the facts

The suit alleges Brenda Koehler, a VMware Certified Professional network engineer with a Master’s in Information Systems, was denied a Lead VMware/Windows Administrator position at Infosys.
During the interview, “Infosys’s representatives spent a considerable amount of time asking about other subjects, including DNS and Active Directory.” Following her in depth answers regarding DNS and Active Directory subjects, one of the Infosys interviewers, “sighed and stated (incorrectly) that Ms. Koehler had no Active Directory experience.”
The suit alleges "after Ms. Koehler was rejected, Infosys continued to interview candidates for the position for a period of nearly two months" and "ultimately hired an individual of South Asian descent."

Content Requirements for Ads Do Not Apply to SWA Job Orders - BALCA

2013-07-31T07:49:00.001-04:00

Matter of Chabad Lubavitch Center, Click here for the case file

Highlights

ISSUE

· On July 11, 2011, the CO issued a second denial letter, stating that the job order contained job requirements which exceeded the job requirements listed on the Employer’s ETA Form 9089 in violation of 20 C.F.R. § 656.17(f)(6) of the regulations.. Specifically, the job order posted at the New York State work force agency3 contains an experience requirement of “Mid-Career (2-15 years)” whereas the ETA Form 9089 only required 24 months experience. (AF 10).

ARGUMENT

On August 4, 2011, the Employer requested reconsideration. The Employer argued that the regulatory authority relied on by the CO for the denial of labor certification applies only to advertisements and not job orders placed with the SWA. The Employer argued that the regulation section pertaining to job orders does not contain the same content requirements as those for advertisements. The Employer additionally argued that the SWA job order form has the following experience options: Intern, Entry Level (0-2 years), Mid-Career (2-15 years), or Senior (15+ years). The Employer explained: “given that the offered position requires not less than two years of experience, it was automatically listed under Mid-Career (2-15 years)” and the Employer had no control over the automatic listing.

BALCA

· The CO denied the Employer’s application because its SWA job order contained job requirements which exceeded the job requirements listed in its ETA Form 9089 in violation of Section 656.17(f)(6). Section H.6 of the Employer’s ETA Form 9089 indicated that it requires 24 months of experience in the position offered. In comparison, the Employer’s SWA job order submitted with its audit materials stated that the position requires “Mid-Career (2-15 years)” experience. The CO‟s denial is appropriate if subsection 6 of Section 656.17(f) applies to job orders, as the requirements in the job order exceeded the requirements in the ETA Form 9089. See CCG Metamedia, Inc., 2010-PER-00236 (Mar. 2, 2011) (“Stating a range of experience in the recruiting materials that goes above the minimum experience requirements stated in the application inflates the job requirements in the job advertisements, and does not accurately reflect the Employers attestations on the ETA Form 9089. Moreover, it is in violation of the regulations.”).

· However, as argued by the Employer, Section 656.17(f), “Advertising Requirements” does not refer to job orders. While job orders are clearly part of the overall recruitment process and are a form of advertisement, the Employment and Training Administration (“ETA”) expressly limited Section 656.17(f) to “advertisements placed in newspapers of general circulation or in professional journals.” Job orders do not fall within these two enumerated categories of advertisements. Furthermore, when looking at the overall structure of the PERM regulations, it appears the ETA purposely omitted language stating that the requirements of Section 656.17(f) apply to job orders. For example, under Section 656.10(d) requiring employers to post a Notice of Filing, the ETA added subsection 4 which explicitly states “the notice must contain the information required for advertisements by § 656.17(f).” 20 C.F.R. § 656.10(d)(4). Thus, although notice of filings would not normally be categorized as “newspaper” or “professional journal” advertisements, the ETA expressly stated it intended Section 656.17(f) to apply to notice of filings as well. The ETA did not include such language in the section addressing job orders.

· BALCA, in a recent en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), held that based on a reading of the plain language of the PERM regulations, an employer is not required to submit a copy of its job order as proof of the recruitment step, because the regulations state “the start and end dates of the job order entered on the application serve as documentation of this step.” In its analysis, the Board contrasted the regulatory language used for job orders in Section 656.17(e)(2)(i) with the language used for newspaper advertisements in Section 656.17(e)(2)(ii). The Board stated “unlike SWA job order regulations, the regulations governing placement of a newspaper advertisement provide that „documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper.‟” Id. at 6. The Board went on to state “this distinction is one of relevance. While the PERM regulations clearly require an employer to be able to provide proof of publication of its newspaper advertisement, the regulations do not require an employer to be able to provide proof of publication of SWA job order.” Id. at 6.

· In support of its regulatory interpretation, the Board in A Cut Above Ceramic Tile quoted the Supreme Court, stating where Congress “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion o[r] exclusion.” Id. at 7 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). The same analysis from A Cut above Ceramic Tile regarding documentation of job orders is equally applicable here. The ETA included language in Sections 656.17(e)(2)(ii)(D), 656.17(e)(1)(i)(B)(3), and 656.10(d)(4) applying the content requirements of Section 656.17(f) to newspaper advertisements and notice of filings, but omitted such language in Section 656.17(e)(2)(i) addressing job orders. It can only be reasoned that the omission with regard to job orders was intentional as the ETA obviously knew how to incorporate the advertising requirements of Section 656.17(f) when it so desired as demonstrated by the three occasions where the requirements were specifically made applicable.5 There is nothing in the regulatory history which suggests that the ETA intended Section 656.17(f) to apply to job orders despite the omission of such a requirement in the regulations. Lastly, we acknowledge that the outcome of this decision causes some concern as job orders play an important role in the recruitment of U.S. workers, and the process would certainly be enhanced if the advertising requirements of Section 656.17(f) applied to job orders. However, given that the regulations contain many specific requirements of employers filing Applications for Permanent Employment Certification, and almost strict liability for failure to comply with the delineated regulatory obligations, we are unwilling to add an additional, unwritten mandate for applicants. That power rests solely with the ETA to amend the regulations to ensure a result that more effectively aligns with the purpose of the regulations.

Employers Need not Document Posting Dates of NOF - BALCA

2013-07-31T07:36:00.002-04:00

BALCA confirmed that 20 CFR 656.10(d) does not require documentation of the posting dates of the Notice of Filing (NOF) and that the affirmation on the ETA 9089 that the NOF complies with the regulations is sufficient.

Matter of Seven Oaks Landscapes, Click here to read the case file

Highlights below

Under the PERM regulations, when an employer files an application for permanent labor certification, it must provide notice of the filing of the application (“NOF”) to its employees. 20 C.F.R. § 656.10(d)(1). This is done by posted notice, for at least 10 consecutive business days, at the facility or location of the employment. 20 C.F.R. § 656.10(d)(1)(ii). The regulations further state the NOF must be “provided between 30 and 180 days before filing the application.” 20 C.F.R. § 656.10(d)(3)(iv). Section 10(d) contains specific requirements as to the content of the NOF, but nowhere does it specifically require the Employer to document or identify the precise dates the NOF was posted.
20 C.F.R. §656.10(d)(ii). The regulation goes on to state that when an employer is asked to document its compliance with this section, the documentation requirement can be “satisfied by providing a copy of the posted notice and stating where it was posted…” Id. There is no requirement that the specific dates of posting be supplied as part of the documentation requirement.
The question of whether an employer must document the precise dates of the NOF posting has been addressed by other BALCA Panels. See Big Dog Homes, LLC., 2011-PER-01421 (Dec. 27, 2012) (affirming CO‟s denial); VIP Tours of California, 2011-PER-00540 (March 19, 2012) (affirming CO‟s denial); Future Quest USA, Inc., 2010-PER-01516 (March 6, 2012) (affirming CO‟s denial); Salem Village Nursing and Rehabilitation Center, LLC., 2022-PER-00587 (Jan 27, 2012) (affirming CO‟s denial).
In Sonora Desert Diary, the Panel determined: [a]lthough 20 C.F.R. § 656.10(d)(1)(ii) pertaining to how the NOF may be documented does not specifically state that an Employer must give the dates the notice was posted, we agree with other BALCA panels that have found such a requirement to be implicit. If the Employer does not provide the dates, the CO cannot independently verify either that the notice was posted for ten days or was posted between 30 and 180 days before filing ETA Form 9089.
The PERM regulations are rife with minutia, requiring an applicant‟s exacting adherence the first time around. There are no second bites at the apple, and when an applicant omits information required by the regulations, denial is the certain consequence. See 20 C.F.R. § 565.11(b) (“requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.”).
Here the regulations set forth a minimum standard for documenting compliance with the posting requirements, and those standards do not include specifying the precise dates the NOF was posted.
It is presumed the absence of such particularity in documenting the specific dates the NOF was posted, was intentional by the drafters. See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular language in one section of a statute, but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
Therefore, although nothing in ETA Form 9089 requires the Employer to document the specific dates the NOF was posted, the Employer must still affirm, under oath, that the NOF complies with the regulations set forth in Section 10(d). Here, the Employer properly affirmed that the notice was posted for ten consecutive business days within the specified period, and therefore met its obligations under Sections 10(d)(1)(ii) and 10(d)(3)(iv).

Home office ads were unduly restrictive - BALCA

2013-07-26T07:40:00.001-04:00

Employer listed “Houston, TX” (the place of the beneficiary’s residence) as the geographic area of employment, when in fact, the position is more flexible and allows the person to work from home thefore, BALCA found that the employer’s ads unduly restrictive and upheld the denial.

The Employer stated that the primary worksite address in the ETA Form 9089 is the same as the foreign worker’s address because the job opportunity affords the Field Service Engineer to work from home and travel to various client sites as needed.

· The CO concluded, after reviewing the documentation, the employer did not offer the condition to work from home to U.S. workers. As a result, the CO denied the application pursuant to 20 C.F.R. § 656.17(f)(7), which states that advertisements must not “contain wages or terms and conditions of employment that are less favorable than those offered to the alien,” and 20 C.F.R. § 656.10(c)(8), which requires employers to attest “[t]he job opportunity has been and is clearly open to any U.S. worker.” (AF 10).

· In its Request for reconsideration employer argued there is no regulation that requires advertisements to indicate that the geographic location is a home office.

· The Employer relied on the minutes from the Department of Labor’s (“DOL’s”) March 15, 2007 Stakeholders Liaison Meeting to support its position that the recruitment was properly conducted based on the worksite address indicated on the ETA Form 9089. Additionally, the Employer stated it complied with 20 C.F.R. § 656.17(f) because the ad “did not contain terms and conditions of employment that are less favorable than those offered to the alien.” It concluded “there is no regulatory prohibition from using a home address in recruitment efforts.”.

· The CO however upheld his denial under 20 C.F.R. §§ 656.10 and 656.17(f)(7), stating: “Not informing U.S. workers they would work from home, rather than from employer’s headquarters or offices, artificially excludes potentially qualified U.S. applicants from applying for the job opportunity.”

CO in its argument with BALCA relied on the below meeting minutes:

DOL’s March 15, 2007 Stakeholders Liaison Meeting, which state in relevant part:

19. If an employer requires an employee to work from home in a region of intended employment that is different from the location of the employer’s headquarters (i.e. work is required to be performed in a designated county or state that differs from the employer’s headquarters), please confirm that the prevailing wage determination and recruitment can take place in the location of the employee’s region of intended employment. Please confirm that the notice of posting under this circumstance should be posted at the company’s headquarters.

If the 9089 form shows the worksite at a designated location other than headquarters, the PWD and recruitment would be for the worksite. AILA note: this issue essentially requires a strategy decision. The PERM form can state that the worksite is the home office, in which case the PWD and recruitment can be for the area of the home office, but the fact that the worksite is the same as the foreign national’s home address will be picked up by the PERM system and the case will likely be audited. This can then be addressed in the audit response and should not be a problem, if the case is otherwise approvable. Alternatively, the PERM form can state that the worksite is the headquarters office, but then the PWD and recruitment must be done for that location.

BALCA rejected Employer’s argument for the following reasons:

The Employer’s reliance on these minutes is misplaced. The minutes demonstrate that the Employer did not err in conducting its recruitment in the area where the alien resides or by listing the alien’s address as the primary worksite in Section H.1-2 of the ETA Form 9089. However, the meeting minutes are silent as to what geographic location should be included in advertisements where the applicant would work from home. These minutes provide no guidance on the content of the advertisements.

We find that the geographic location listed on the advertisements, “Houston, TX,” represents a condition of employment that is less favorable than that offered to the alien. An applicant reading the advertisements would be under the impression that he or she was restricted to working in Houston, Texas. In contrast, the alien was given the option to work from his residence, which did not necessarily have to be in Houston, and which greatly expanded the potential geographic location of employment. Listing the location as Houston, Texas suggested to potential U.S. applicants that the job location was less flexible than it actually was. See JDA Software, Inc., 2011-PER-02661, PDF at 2 (Sept. 27, 2012). There is no indication that the job has to be performed specifically in Houston. In fact, the Employer indicated that it has customers throughout North America and the position requires both domestic and international travel.. This suggests that the geographic location of the job opportunity was not as restrictive as the Employer led potential applicants to believe. Juniper Networks, 2011-PER-00841, PDF at 3 (Sept. 20, 2012). It appears that the only reason Houston, Texas was advertised as the geographic location is because that is where the alien was currently residing. Id. We find that the Employer’s advertisement was unduly restrictive, misleading, and could have prevented potential U.S. applicants from applying for the job opportunity. Id.; JDA Software, Inc., 2011-PER-02661 at 2.

Click here for the case file

Though BALCA stresses on Due Process But still Upholds Denial

2013-07-15T11:42:00.000-04:00

SUMMARY

TRAVEL REQUIREMENTS MUST BE INDICATED EVEN ON THE RECRUITMENT.

CLICK HERE FOR THE FILE

FACTS

1. The ETA Form 9089 stated in an addendum to Section H.14 that “[o]ccasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights.”

2. The job order, advertisements, and employer’s website did not include this travel requirement

3. The CO based his denial on 20 C.F.R. §656.17(f)(7), which states that advertisements must “[n]ot contain wages or terms and conditions of employment which are less favorable than those offered to the alien.”

EMPLOYER’S ARGUMENT

· The Employer argued that its “recruitment did not say travel wasn’t required, it said nothing about travel whatsoever . . . . Silence cannot be inferred as saying there is no travel involved in the job.” Moreover, because travel has routinely been viewed by the DOL as a detriment, and therefore not listing a travel requirement makes the terms and conditions of employment offered to U.S. workers more favorable, not less favorable, than the terms and conditions of employment offered to the foreign worker.

On February 14, 2012, the CO denied reconsideration and forwarded the case to the Board of Alien Labor Certification Appeals (“BALCA”) for administrative review.

· The Employer argued in its brief that Section 656.17(f)(7) states that advertisements may not “contain” terms and conditions less favorable than those offered to the alien, and therefore silence on the issue of travel does not violate the regulation. (Er. Br. 3). The Employer cited Emma Willard School, 2010-PER-01101 (Sept. 28, 2011) as an affirmation of this argument. (Er. Br. 3-4). The Employer emphasized that not every term or condition of employment needs to be included in an employer’s advertisements, citing to the DOL’s FAQs.

BALCA’S DISCUSSION

1. This is a violation of Section 656.17(f)(4), which requires employers to include in their advertisements any travel requirements listed on the ETA Form 9089.

2. Unfortunately, the CO did not cite to Section 656.17(f)(4) as authority for his denial, and instead he unnecessarily complicated the matter by relying on Section 656.17(f)(7). Reliance on Section 656.17(f)(7) is flawed for several reasons. As pointed out by the Employer in its brief, travel can be considered either a benefit or a burden depending on the individual applicant, and therefore not including travel as a term of employment does not necessarily make the position “less favorable.”

3. BALCA NOTED THAT It is inexplicable to us why the CO would cite to Section 656.17(f)(7) where there is another subsection directly on point, and we note that this is not the first time the CO has cited to questionable, or patently incorrect, regulations when there is a more applicable and appropriate regulatory section to support his reason for denial. Such deficiencies by the CO defeat the PERM process’ goals of efficiency and streamlining cases.

4. On the other hand, the Government’s interest is substantial in this matter. Under the PERM regulations, we are limited to either affirming the denial of certification, or reversing the denial and granting certification; we do not have authority to remand the case. 20 C.F.R. § 656.27(c); ETA Final Rule, Labor Certification for the Permanent Employment of Aliens in the United States; Implementation of New System, 69 Fed. Reg. 77326, 77363 (Dec. 27, 2004) (“we have concluded BALCA should not have authority to remand cases to the CO.”). Thus, by reversing the CO’s denial, we would be required to grant certification for a foreign worker despite a clear violation of the regulations, potentially preventing a qualified U.S. worker from obtaining the position. This is a serious consequence, as it defeats the primary intent of the Immigration and Nationality Act and the implementing PERM regulations. Accordingly, weighing the three factors set out in Mathews v. Eldridge, we find no violation of due process.

5. Because the record shows that the Employer’s various advertisements did not include the phrase “Occasional day travel within San Antonio Metropolitan area and/or to Corpus Christi, Texas. No Overnights,” that was listed on the ETA Form 9089, we affirm the denial of labor certification pursuant to 20 C.F.R. § 656.17(f)(4).

Labor Certification Registry (LCR) goes LIVE !!

2013-07-02T06:15:00.000-04:00

Wow!! At last Labor Certification Registry (LCR) goes LIVE !!

See the LCR schedule here and LCR here

Sharing Form I-9 with Third Party Contractors

2013-06-25T06:41:00.000-04:00

Generally, most of the third party contractors request Form I-9 from the employers to verify if the employer is in compliance withe I-9 regulations. The first question that arised even in my mind was it is employer's responsiblitiy and has got nothing to do with the third party contractors. However, due to business pressure there was no other option and mainly because there was no clear guidance on this issue, it was hard for employer's to say a clear "NO".

Now, we have gotten almost a clear guidance with the letter dated 12/22/10 and 7/22/11 to Eileen Scofield and Karl Buesgen. These letters confirm that Although it is not per se discrimination but OSC (Office of Special Counsel) generally does not encourage such a practice. OSC suggests that employers not share Forms I-9 with third parties, but cannot say that this is the position of other federal agencies. Turning over Forms I-9 to a third party is not a per se violation of INA §274B unless an employer selects only certain Forms I-9.

See Letters here and here

Summary of changes in Hatch-Shcumer amendment.

2013-05-22T07:36:00.001-04:00

H–1B SKILLED WORKER DEPENDENT - Section 212(n)(3) (8 U.S.C. 1182(n)(3)) is amended—

Note - the present definition of H-1B dependent employer remains same. Click here for its definition. In addition to that there is "H-1B Skilled worker Dependent Employer", See below definition.

(
‘H–1B skilled worker dependent employer’ means an employer who employs H–1B non immigrants in the United States in a number that in total is equal to at least 15 percent of the number of its full-time equivalent employees in the United States employed in occupations contained within Occupational Information Network Database (O*NET) Job Zone 4 and Job Zone 5.

(ii) An H–1B nonimmigrant who is an intending immigrant shall be counted as a United States worker in making a determination under clause (i).’’

The term intending immigrant has broad definintion. Any employee for whom a Labor Certification is filed will be counted as an intending Immigrant.

The amendment also says

(b) SPECIAL REQUIREMENTS.—Notwithstanding any other provision of law, the amendments made by section 4211(c) shall not apply to any application or petition filed by an employer on behalf of an existing employee.

ADJUSTMENT OF STATUS FOR EMPLOYMENT BASED IMMIGRANTS.— ‘‘(1) PETITION.—An alien, and any eligible dependents of such alien, who has filed a petition for immigrant status, may concurrently, or at any time thereafter, file an application with the Secretary of MDM13698 S.L.C. Homeland Security for adjustment of status if such petition is pending or has been approved, regardless of whether an immigrant visa is immediately available at the time the application is filed.

See the entire Hatch-Shcumer amendment here

Electronic I-94 - Travel Advice

2013-05-17T05:57:00.000-04:00

We request the travelers to carry a hard-copy of From I94 with them - because a paper Form I-94 is would function as a backup document in the event that CBP officers cannot access the electronic record of admission at the time that traveller seeks re-admission to the U.S.

You must get a Tear Sheet. If not? That's okay

Nonimmigrant or Parole traveller must expect a tearsheet at the port of entry from CBP directing the them to the CBP website (www.cbp.gov/I94). The People who do not receive a tear sheet may still be able to access their electronic Form I-94 admission record at www.cbp.gov/I94 by entering the required information.

What if your name is not available to print I-94 in CBP website?

If an individual cannot locate a record at www.cbp.gov/I94 or if the information at that site does not correlate with the passport stamp and written notation of class and term of admission made by CBP at the POE, be sure read the FAQ that gives few basic instructions but worth reading. Also, CBP has clearly told earlier that the name on the passport, rather than the visa, is required to access a record of admission.

Even if this wont help then contact through a deferred inspection office (http://www.cbp.gov/xp/cgov/toolbox/contacts/deferred_inspection/). I personally know that deferred inspection site officers are very friendly and will resolve the issue immediately.

CBP - I-94 Quick reference guide

2013-05-16T03:54:00.001-04:00

Customs and Border Protection's reference guide showing different versions of the Form I-94 Arrival/Departure Record that may be encountered in the field by local, state and/or federal agencies.See below

Update - Video demonstration by CBP on how to print I-9 using computer. Click here