Cora-Ann Pestaina

PERM Audits Request Sworn Declarations Regarding Improper Payments

/1 Comment/in , /by

Recently, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) published its factsheet with statistics on the PERM program for FY2012 covering the period from October 2011 to September 16, 2012. Of the 67,400 PERM applications received during that period, 45% were audited for review. While audit notifications discussing the employer’s use of an employee referral program, roving employees, or bearing requests for the resumes of all applicants are so frequently issued that they have almost become par for the course, the newest audit request came as quite the surprise. The latest audits now request declarations from the employer and the foreign worker, each signed under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification. Specifically, the audit request states:

Please provide declarations from the employer and the foreign worker, each signed by the respective individual under penalty of perjury, stating whether the employer received payments of any kind by the foreign worker or a third party for any activity related to obtaining permanent labor certification, including payment of the employer’s attorney’s fees, whether as an incentive or inducement to filing, or as a reimbursement for costs incurred in preparing or filing a permanent labor certification application. Such payments include but are not limited to legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process.  Note that any payment of fees by the foreign worker or third party for the benefit of the employer constitutes a “receipt of payment” by the employer, despite the fact that such payments may have been made directly to a party other than the employer – e.g., the employer’s attorney, Department of State, etc.

If any such payments were made, please provide a list outlining the payment amount, who made the payment, to whom payment was made, dates, and the purpose of the payment.

If payments were received from a third party to whose benefit work to be performed in connection with the job opportunity would accrue, please provide documentation explaining both the business relationship between the employer and the third party and the benefit of the work performed, or to be performed, in accordance with the Department’s regulations at 20 CFR § 656.12(c).

If payments were made to the employer by the foreign worker as a result of an agreement/contract entered into prior to July 16, 2007, please provide documentation evidencing both that an agreement existed and that it was entered into prior to July 16, 2007. Examples include the contract, the agreement or a declaration signed by both the employer and the foreign worker under penalty of perjury, in the case of oral agreements.

The issue of payments for activity related to obtaining permanent labor certification first came up when the DOL published its final rule to “enhance program integrity and reduce the incentives and opportunities for fraud and abuse related to the permanent employment of aliens in the United States” which took effect on July 16, 2007. See 72 Fed. Reg. 27,903-27,947 (May 17, 2007). The rule revised the regulations found at 20 CFR §656 and implemented substantial changes to the labor certification process, including prohibition on the sale, barter, or purchase of labor certification applications and a requirement that employers pay all attorney’s fees and costs associated with labor certification. The rule also made unenforceable any employer agreements requiring employees who leave within a certain time period to pay reimbursement costs associated with the labor certification. In passing this rule, the DOL rationalized that a prohibition against the transfer of labor certification costs from sponsoring employers to foreign national beneficiaries keeps legitimate business costs with the employer, minimizes improper financial involvement by aliens in the labor certification process, and strengthens the enforceability of the bona fide job opportunity requirement. All reasoned opposition to the rule prior to its promulgation fell on deaf ears.

On July 16, 2007, the DOL also issued a FAQ to clarify certain aspects of the rule. The FAQ explained that pursuant to §656.12(b), an employer may not seek or receive payment of any kind for any activity (including recruitment activity and the use of legal services) related to obtaining permanent labor certification, except from a party with a legitimate, pre-existing business relationship with the employer, and when the work to be performed by the foreign national beneficiary will benefit that party. The preamble to the rule provided the example of physicians who frequently have split appointments between a Veterans Affairs Medical Center (VAMC) and an affiliated institution of higher education. In these cases, although there is one “employer of record” who files the labor certification application, the university, as a legitimate third party, could reimburse the VAMC for costs associated with the labor certification.“Payment” includes, but is not limited to, monetary payments; deductions from wages or benefits; kickbacks, bribes, or tributes; goods, services, or other “in kind” payments; and free labor.  This includes the prohibition against the alien paying the employer’s attorneys’ fees in connection with the labor certification application.

The FAQ clarified that an employer, or attorney representing an employer, who entered into a contract where payments from the foreign national are either owned after July 16, 2007 or owed prior to July 16, 2007 but not paid until after that date, have the right to seek the payment provided the payment obligation accrued prior to July 16, 2007. The employer must answer YES to Question I.e.23 on the ETA Form 9089 which asks, “Has the employer received payment of any kind for the submission of this application?” Then, the employer must explain and provide supporting details in I.e.23-A which states, “If Yes, describe details of the payment including the amount, date and purpose of the payment.”

The FAQ also explained another exception to the rule which provides that “attorneys may represent aliens in their own interests in the review of a labor certification (but not in the preparation, filing and obtaining of a labor certification, unless such representation is paid for by the employer), and may be paid by the alien for that activity.” The rule also did not prohibit the alien from paying fees associated with the subsequent visa petition (Form I-140) and the adjustment of status application (Form I-485).

Pursuant to §656.20(a), an audit letter may be issued by the DOL if a labor certification is randomly selected for quality control purposes, or if, after reviewing the application, the certifying officer finds more information is needed before a determination can be made. Neither of these reasons justifies this new request for declarations. Questions I.e.23 and I.e.23-A on the ETA Form 9089 already address the issue. In response to an audit, the employer must submit a copy of the submitted ETA Form 9089 with original signatures in Section L (Alien Declaration),  Section M (Declaration of Preparer (if applicable)), and Section N (Employer Declaration) to affirm that the information listed is true and accurate. As clearly stated on the ETA Form 9089, each declaration must be signed under penalty of perjury.  In light of this, it is not clear why additional sworn declarations are now being requested. In any event, it is important to respond truthfully.

If the employer did not receive payments from the foreign national or a third party, the employer may submit a signed and notarized statement as follows:

[Employer name] did not receive payment of any kind from the [foreign national] or from a third party for any activity related to obtaining permanent labor certification. 

[Employer name] did not receive payment for the legal fees; administrative fees; advertising costs and/or any other costs or fees related to the filing of the labor certification application; wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

The foreign national may submit a signed and notarized statement as follows:

I did not pay [Employer name] any fees in relation to the filing of a labor certification application on my behalf.  

[Employer name] did not receive payment from me for the legal fees, administrative fees, advertising costs and/or any other costs or fees related to the filing of the application. Also, [Employer name] did not ask me for any wage concessions, such as deductions from wages, salary, or benefits; kickbacks, bribes or tributes; in-kind payments; free labor; and/or any other form of payment for services essential to the labor certification process. 
I swear under penalty of perjury that the foregoing is true and correct.

Only time will tell whether this new request will become another audit standard. It is essential that practitioners inform new clients and remind existing clients of the rule regarding payment of fees in connection with a labor certification. It is understandable why an employer would want to seek some type of protection, e.g. through employer agreements for reimbursements, against spending thousands of dollars to sponsor a foreign national only to have him leave the moment he obtains permanent residence. But employers must also be informed that the DOL, under §656.31(a), may deny any labor certification if the certifying officer finds the application contains false statements, is fraudulent or otherwise submitted in violation of the DOL’s regulations. Under §656.31(b) the DOL may, if it learns that an employer, attorney or agent is involved in possible fraud or willful misrepresentation, refer the matter to the Department of Homeland Security or other appropriate governmental authority and suspend processing of any labor certification involving the employer, attorney or agent until completion of any investigation. Under §656.31(f) the DOL may debar an employer for up to three years upon a determination that the employer has participated in or facilitated “the sale, barter or purchase of permanent labor applications or certifications, or any other action prohibited under §656.12” or “the willful provision or willful assistance in the provision of false or inaccurate information in applying for permanent labor certification” or “a pattern or practice of failure to comply with the terms of the Form ETA 9089.” Finally, the DOL could, under §656.32, take steps to revoke an approved labor certification if it is later found that the certification was not justified.  It is obvious that the issue of improper payments is one that must always be taken very seriously.

David Isaacson

OPPOSITION TO CORRUPTION AS A POLITICAL OPINION SUPPORTING A GRANT OF ASYLUM: RUQIANG YU V. HOLDER AND ITS PREDECESSORS

/0 Comments/in , /by
By David A. Isaacson

On September 7, 2012, the Court of Appeals for the Second Circuit issued a precedential opinion in Ruqiang Yu v. Holder, No. 11-2546-ag, reaffirming that opposition to corruption may under some circumstances qualify as a political opinion upon which a grant of asylum can be based under U.S. immigration law.  According to Ruqiang Yu, this may be the case even if an asylum applicant has failed to prove that similar corruption exists elsewhere in his or her native country beyond the specific context in which he or she opposed it.

Ruqiang Yu was initially denied asylum by an Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) despite their acceptance of his testimony that he had been mistreated after opposing corruption at the state-owned factory where he worked in China.  As the Court described the facts: 

The IJ found that Yu credibly testified that, while an employee and a team leader at a state-run airplane factory in Shanghai, his employer corruptly refused to pay the wages of workers on his team and that, when Yu’s efforts to aid the workers and to bring the corruption to the attention of government officials was discovered, he was jailed and later fired.
Ruqiang Yu, slip op. at 2.  Despite these findings, the BIA “concluded that Yu failed to establish that his actions ‘constitute[d] a political challenge directed against a governing institution’ since he was objecting to ‘aberrational’ corruption by individuals.”  Id.at 5.  “Yu’s actions, the BIA reasoned, were “a personal dispute against his individual employers for misusing funds he believed should have gone toward the unpaid wages of the laborers on whose behalf he sought to intervene.”  Id.
The BIA and the IJ in Ruqiang Yu appear to have acknowledged that under Second Circuit case law, “opposition to government corruption may constitute a political opinion, and retaliation against someone for expressing that opinion may amount to political persecution.”  Castro v. Holder, 597 F.3d 93, 100 (2d Cir. 2010).  As the Second Circuit had said in case law to which it appears that the BIA was referring in its decision when it set out the criteria that Mr. Yu purportedly had not met:
In considering whether opposition to corruption constitutes a political opinion, “[t]he important questions … are whether the applicant’s actions were ‘directed toward a governing institution, or only against individuals whose corruptionwas aberrational,’ ” and “whether the persecutor was attempting to suppress a challenge to the governing institution, as opposed to isolated, aberrational acts of greed or malfeasance.”
Before the Second Circuit’s decision in Ruqiang Yu, but after the Second Circuit’s decisions in Castroand Yueqing Zhang, the BIA had also recognized in a published opinion that “in some circumstances, opposition to state corruption may provide evidence of an alien’s political opinion or give a persecutor reason to impute such beliefs to an alien.”  Matter of N-M-, 25 I&N Dec. 526Matter of N-M-, 25 I&N Dec. 526, 528 (BIA 2011).  In Matter of N-M-, the BIA cited the Second Circuit’s Zhang decision, but found that at least with regard to asylum applications subject to the REAL ID Act because they were filed after May 11, 2005, more than retaliation for opposing acts of corruption linked in some way to a political system was required:
Since the passage of the REAL ID Act, a showing of retaliatory harm for exposing acts of corruption, coupled with evidence that the corruption is in some way linked to a political system, would appear insufficient to demonstrate that a victim’s anticorruption beliefs are “one central reason” for retaliation against him. Instead, an alien must persuade the trier of fact not just that the alleged persecutor was motivated in some measure by the alien’s actual or imputed political belief, but that the protected trait was “one central reason” for the persecution.
Matter of N-M-, 25 I&N Dec. at 532.  

The BIA in Matter of N-M- described three factors that an IJ could use to determine whether actual or imputed political opinion was a central reason for retaliation against one who had expressed an anticorruption belief.  The first is “whether and to what extent the alien engaged in activities that could be perceived as expressions of anticorruption beliefs”   such as whether the “alien denounced corruption in public or at work, published articles criticizing governmental corruption, or organized fellow victims of government extortion against this behavior.”  Matter of N-M-, 25 I&N Dec. at 532.  The second factor is “any direct or circumstantial evidence that the alleged persecutor was motivated by the alien’s perceived or actual anticorruption beliefs,” such as “statements indicating that the persecutor viewed the alien as a political threat or subversive and was motivated as such.”  Id.  The third factor described by BIA in Matter of N-M-, citing the Second Circuit’s decision in Castro, looks to whether corruption was pervasive in an asylum applicant’s country:

An Immigration Judge should also consider evidence regarding the pervasiveness of government corruption, as well as whether there are direct ties between the corrupt elements and higher level officials. Where the alien threatens to expose the corrupt acts of rogue officials acting without the support of the governing regime, it seems less likely that the act would be perceived as politically motivated or politically threatening. However, if corruption is entrenched in the ruling party, a challenge to the corrupt practices of this party may be more likely to represent a challenge to the political position of the ruling party, and not just the financial standing or reputation of a small group of corrupt officials. See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) . . . .  Whether the governing regime, and not just the corrupt individuals, retaliates against an alien for expressing anticorruption beliefs is relevant to this inquiry.
Matter of N-M-, 25 I&N Dec. at 533.
The Second Circuit in Ruqiang Yu concluded that the BIA had applied an erroneous legal standard in determining whether the corruption opposed by an asylum applicant was “aberrational” for purposes of the test that the Second Circuit itself had set out in Yuequing Zhang and Castro.  As the Second Circuit reminded the BIA: “Because the form and nature of political opposition can vary widely, the assessment of when opposition to corruption becomes an expression of a political opinion involves a context-specific, case-by-case determination.”  Ruqiang Yu, slip op. at 7.  For several reasons, the Second Circuit did not find the BIA to have performed such a determination properly in Yu’s case:
First, we note that the BIA’s factual conclusion that Yu opposed “aberrational” corruption is not supported by the record. Conduct is “aberrational” if it is “a deviation or departure from what is normal, usual, or expected” or something that is “abnormal, diverging from the norm.” Oxford English Dictionary (June 2012, online ed.) (defining “aberration”). Yu’s application indicated that “quite a few . . . workers in other groups did not get paid for a few months,” and that he personally escorted ten of them to confront factory officials. These facts indicate that the non-payment of wages was apparently recurring, not aberrational.
Second, the appropriate inquiry does not focus simply on the number of corrupt acts, but on an assessment of the overall climate and context in which the opposition takes place. Where opposition to corruption transcends self-protection and represents a challenge to state-sanctioned modes of official behavior, a petitioner may be eligible for asylum. . . .
The fact that the protests organized by Yu challenged corruption at a single workplace does not render the corruption categorically aberrational without regard to the nature of Yu’s conduct.  In several ways, Yu’s conduct is typical of political protest (and may have been perceived as such by the authorities). Thus, the record indicates that Yu had no personal, financial motive to oppose the corruption, undertook to vindicate the rights of numerous other persons as against an institution of the state (a state-owned factory), and suffered retaliation by an organ of the state – the police.
Id. at 7-8. 
The single-workplace issue, the Second Circuit noted, was “sharply presented” because Yu had “failed to present . . . evidence of more broad-based corruption at state-owned factories in his native land.”  Id. at 8 n.2.  Nonetheless, the IJ and BIA erred by not “assess[ing] Yu’s claim in its full factual context” to determine whether Yu’s activities were “a challenge to the legitimacy of the government’s entrenched modes of conduct”, or whether the authorities had imputed a political opinion to him (which could be a basis for an asylum claim even if he did not hold such an opinion).  Id. at 8-10. 
One should not lose sight even after Ruqiang Yu of the importance of submitting evidence of systemic, country-wide corruption in an asylum applicant’s home country, if possible.  This author recently represented a client whose application for asylum was granted by the New York Asylum Office based on past persecution and a fear of future persecution relating to his opposition to corruption at a Russian state-owned enterprise (and who has agreed that this limited information about his case can be made public).  In that case, we submitted voluminous evidence of widespread corruption in Russia.  We would do the same today: even within the Second Circuit and even after Ruqiang Yu, it is still highly advisable if at all possible to submit such background evidence regarding the prevalence of corruption in the country of feared persecution, because it will assist greatly in showing that the applicant’s claim relates to “a challenge to the governing institution” under Yueqing Zhang and Castro.  Outside the Second Circuit, evidence of pervasive corruption throughout the country of feared persecution is even more important, under the BIA’s reasoning in Matter of N-M-.  

However, Ruqiang Yu teaches that at least within the Second Circuit (and perhaps elsewhere if the BIA or other Courts of Appeals accept the Second Circuit’s reasoning), some claims of asylum based on opposition to corruption may be viable even if evidence regarding country-wide corruption is for some reason unavailable.  In cases where reliable background evidence regarding the corruption in a particular country or region simply cannot be obtained despite vigorous efforts, applicants and attorneys need not despair.

Cora-Ann Pestaina

The H-1B Process Gets Even Harder: DOL Proposes Dramatic Changes to the LCA Form

/0 Comments/in , /by

I still think longingly of the days when certification of a Labor Condition Application (“LCA”) could be obtained within seconds. Three years ago, the Department of Labor (DOL) mandated that all LCA filings must be filed through its iCERT portal (http://icert.doleta.gov/) and that each application form, also changed to request additional, new information, would be manually reviewed prior to certification. This change increased the official LCA processing time from a few seconds to 7 business days. Human error and other systemic problems at the onset of the change resulted in filings taking three weeks or longer to process which led to late filings on H-1B petitions, a public outcry and US Citizenship and Immigration Services (USCIS) temporarily allowing employers to file H-1B petitions without certified LCAs! The new iCERT system forced H-1B employers to change their approach to filing H-1B petitions. The LCA process is about to change again.

As a background, an employer seeking to employ a temporary foreign worker in H-1B, H-1B1 or E-3 nonimmigrant status must, as the first step in the petition process, file an LCA with the DOL and receive certification. The LCA is completed on electronic Form 9035 through the DOL’s iCERT system. The LCA collects information about the occupation and there are special attestation requirements for employers who previously committed willful violations of the law or for employers who are deemed to be H-1B dependent. An employer is permitted to file the LCA no more than six months before the initial date of intended employment.

The DOL now seeks to once again revise the scope of the information collected on the LCA citing, in its LCA supporting statement, a desire to improve its integrity review and ensure the accuracy and completeness of the information. On July 9, 2012, the DOL published a Notice in the Federal Register announcing a 60-day comment period (to end on September 7, 2012) on its proposed changes to the form ETA-9035. In a process that is likely to take several months, the changes must be approved by the federal Office of Management and Budget before they can be implemented.

Changes include requiring more detailed information about the prevailing wage; requiring more detailed information regarding how the employer determined whether it is H-1B dependent and whether the nonimmigrant worker is an exempt employee or if not exempt, specifying the employer’s recruitment efforts to recruit US workers; and requiring the employer to list the address where the employee’s public access file is kept.

Some of the changes are even more significant.

Identification of Intended Beneficiaries

The current LCA does not require any information identifying the intended beneficiaries. The new form will collect information on the nonimmigrant(s) including name, date of birth, country of birth, country of citizenship and current visa status. If a PERM labor certification application was filed on behalf of the intended beneficiary, the PERM application number must be listed.

In its LCA supporting statement, the DOL states that this new information will allow its Wage Hour Division (WHD), which was created with the enactment of the Fair Labor Standards Act (FLSA) and is responsible for the administration and enforcement of a wide range of laws which collectively cover virtually all private, State and local government employment, to more efficiently gather information during its enforcement activities and to find beneficiaries who may be entitled to back wages after an investigation. The DOL claims that this change will cause little extra burden because employers “generally know who the beneficiaries are before filing the LCA except possibly for the 2.6 percent of employers who file LCA’s for more than 10 employees.” Because iCERT saves much of the information on an LCA which can later be used to fill out other LCAs, the DOL states that it will not be overly burdensome for an employer to complete more than one LCA. The DOL also refers to its “relatively quick turnaround on LCA approval” as another reason why employers do not need to complete one LCA for large numbers of beneficiaries.

The DOL makes some valid points.  The majority of employers do not need to complete an LCA for more than 10 workers at a time. iCERT indeed saves most of the information and it may not be overly burdensome to complete multiple LCAs.  However, since employers are required to make LCAs available for public inspection, privacy and identity theft concerns are easily justifiable. The DOL ought to address this.

In addition, what the DOL has not addressed is the flexibility that will be lost because employers will no longer be able to use an existing, certified LCA to file a nonimmigrant petition for a new hire. The new identification requirement may be hard on large employers who file numerous H-1B petitions. The current annual cap on the H-1B category is 65,000. Each year, on April 1, USCIS begins accepting cap-subject H-1B petitions for employment to commence in the new fiscal year, on October 1. Employers typically scramble to prepare and file cap-subject H-1B petitions before the cap closes. For large employers, especially those with branches abroad, it is may be difficult to come up with a list, in March or April, as to who will be transferred to the US to work in October. These hiring decisions are ongoing and employers rely on the flexibility of the LCA which allows them to quickly file an H-1B petition using an existing, certified LCA provided it lists the correct information such as visa category, job classification, etc. This way, employers are not always forced to spend 7 business days waiting for the LCA to be certified and watching existing H-1B visa numbers dwindle.

What about that H-1B worker who just received notice from his current employer and has luckily found a new employer willing to file an H-1B on their behalf? How significant would it be if the new employer is able to use an existing, certified LCA and file an H-1B transfer petition before that worker falls out of status? What the DOL describes as a “relatively quick turnaround on LCA approval” can seem interminable in the case of an emergency. The DOL must bear in mind that no matter the emergency, it provides no expedite procedures for the LCA. Flexibility is therefore very important.

Interestingly, the new LCA would require listing the beneficiaries’ PERM application numbers. At this time, the possible acceptable responses to this question are not clear. But, since the PERM application is filed by the employer, a new employer of an H-1B transfer might not have this information. But this requirement suggests that the DOL may begin to cross reference the job opportunities in the nonimmigrant and immigrant cases as well as match the wages in both the cases.

Limiting the LCA to only 10 workers

Currently, a single LCA may be filed for up to hundreds of workers. An employer may use a single LCA to request multiple positions where they are in the same visa category and job classification and are either all part-time or all full-time positions.

The DOL now seeks to limit the number of workers to 10 per LCA explaining that it has found enforcement of LCA obligations difficult when an LCA is for 50 or 100 job opportunities and it would be a significant expenditure to build an electronic form to accept more than 10 names.

The issue, as discussed above, may not be with the limit of 10 names, but with naming requirement itself and the limitations that come from that.

Worksite Identification

The current LCA form requires the employer to identify the place(s) of intended employment. This entails listing the complete address and county where the beneficiary will work. The proposed new LCA will require significant additional detail.

The employer will have to indicate whether the intended worksite is the employer’s business premises; the employer’s private household; the worker’s private residence; or other business premises which type must then be inserted on the form. The employer must state whether the employee placement is at an end client location. If yes, the form then requires the name of the end client.

In its LCA supporting statement, the DOL stated simply that the additional information is needed for “clarification on actual worksite to enable employer to demonstrate regulatory compliance regarding changes in worksite.” This requirement could cause serious problems.

Again, the employer’s flexibility may be taken away. Currently, the employer has the flexibility to send employees to new worksite locations without filing a new LCA provided the new location is in the same area of intended employment listed on the certified LCA. See 20 C.F.R. §655.731(a)(2) which states that the wage on an LCA is valid for the area of intended employment. If each LCA has to list the end client information, will the employer be required to complete a new LCA each time it moves an employee even if it is within the intended area of employment?

Also, in cases where the employer is filing a change of status petition on behalf of the beneficiary or the beneficiary is abroad and will obtain an H-1B visa to enter the US, until the beneficiary is lawfully present in the United States in valid H-1B status and is thereby authorized to accept employment in the United States, the employer cannot hold him out as an employee.  See 8 C.F.R § 274a.1(c) and (f). Therefore, the employer may not be able to obtain that end client agreement prior to preparing the LCA.

Business immigration practitioners may already know that cases involving telecommuting and roving employees are currently being given increased scrutiny by the DOL. In light of that, the proposed changes to the LCA form are not surprising and seem to stem from some concern on the part of the DOL, with regard to LCA compliance and the bona fides of the offer of employment. Following the request for end client information on the proposed form is the irrelevant and possibly offending question, “Is this a bona fide job opportunity?” The DOL’s makes no effort to hide its blatant mistrust of the employer who places its employee at an end client site.

In recent times, the US government has taken small steps to attract foreign workers and to show that they are an asset rather than a liability. The changes to the LCA will again add more burdens on the employer by eliminating flexibility. On March 12, 2012, the USCIS issued revised guidance indicating that the failure to obtain an end client letter would not be fatal to an H-1B petition. The DOL is now insisting on exactly that by requiring that the precise worksite be listed on the LCA. We need less regulation rather than more in order for US companies to attract global talent.  In addition to the proposed changes to the LCA, there is proposed legislation in the form of HR 3012 (following the compromise between Senators Grassley and Schumer) that will grant the DOL draconian powers in denying LCAs based on undefined indicators of suspected fraud and thus hold up the processing of H-1B petitions.    Are the proposed changes to the LCA form taking two steps back?

David Isaacson

WHAT THE THIRD CIRCUIT MISSED IN VERA, PART TWO: A PRACTICAL EXAMPLE OF WHY ACCEPTING UNREFUTED BUT UNSUPPORTED GOVERNMENT ASSERTIONS IS PROBLEMATIC

/0 Comments/in , /by

In a previous post on this blog, “The Prejudice Caused By Summary Removal After Visa Waiver Admission: What the Third Circuit Missed in Vera and Bradley”, I discussed the case of Vera v. Attorney General of the U.S., in which the U.S. Court of Appeals for the Third Circuit held that a woman who had entered the United States at the age of 12 under the Visa Waiver Program (VWP) could be removed without a hearing before an immigration judge, even though the government could not produce proof that she had actually waived her right to such a hearing. The Third Circuit in Vera relied on a presumption that the waiver must have been properly executed since this was required by statute in order for Ms. Vera to be admitted under the VWP, and also on the argument, first accepted by the Third Circuit in the case of Bradley v. Attorney General of the U.S., 603 F.3d 235 (3d Cir. 2010), that there was no prejudice to Ms. Vera from any lack of a knowing and voluntary waiver because the summary removal that she now faced was the same consequence that she would have faced if she had refused to sign the waiver.

As explained in my previous blog post, the assertion of lack of prejudice that formed an important part of the Third Circuit’s initial decision in Vera was based on an error. It has now become apparent that the presumption of a proper waiver in the Third Circuit’s decision was also based on an error, one that helps illustrate why courts in the immigration context should be reluctant to indulge unproven executive-branch assertions about how something must have happened. The Third Circuit has now had to vacate its decision in Vera, because the government discovered that Ms. Vera actually was not admitted under the VWP at all!

As discussed in a June 11 post on AILA’s Slip Opinion blog, following the Third Circuiit’s March 1 decision in her case, Ms. Vera secured pro bono counsel to represent her in a petition for rehearing en banc before the Third Circuit, and they in conjunction with the New York State Youth Leadership Council succeeded in getting her released from immigration detention in April after she had been detained for nine months. Then, as reported on May 21, 2012 by Ms. Vera’s new pro bono counsel at the Heartland Alliance’s National Immigrant Justice Center (NIJC) , to whom congratulations are due, the Department of Homeland Security (DHS) cancelled the removal order against Ms. Vera after belatedly realizing that Ms. Vera had not been admitted under the VWP, and the Office for Immigration Litigation (OIL) (federal court lawyers who represent DHS), filed a motion to throw out Vera’s immigration case. On May 25, 2012, at the urging of Ms. Vera’s new NIJC counsel, Ms. Vera was granted deferred action in the exercise of prosecutorial discretion. And in an order issued on June 13, 2012, the Third Circuit vacated its earlier decision in Vera and dismissed the case, because there was no longer any final order of removal and thus nothing for the Third Circuit to review.

In its June 13, 2012 order vacating its earlier decision, the Third Circuit stated: “The Court notes that it based its decision on the incorrect representation of the Department of Homeland Security that petitioner was admitted to the United States under the Visa Waiver Program and further notes that petitioner did not challenge this representation.” The original March 1, 2012 decision had acknowledged that Ms. Vera “did not concede expressly that she entered the United States under the VWP” but concluded that the government’s assertions, plus Ms. Vera’s failure to contend otherwise, left the Court “satisfied” that such was the case:

In her opening brief in this Court, Vera did not concede expressly that she entered the United States pursuant to the VWP. But the government in its answering brief pointed out that Vera stated that she was admitted under the VWP in the Record of Sworn Statement that she executed when Immigration and Custom Enforcement officers took her into custody and that her father, in an affidavit submitted on her behalf, made the same representation. Though she had the opportunity in her reply brief to contest the government’s representation of the contents of those documents she did not do so nor does she deny now that she entered the United States under the auspices of the VWP. Moreover, she does not contend that she entered the United States on any basis other than under the VWP. In these circumstances, we are satisfied that she entered pursuant to the VWP. We also point out that there is no indication in the briefs or the record on the petition before us that she ever has left this country since the time of her entry.

Vera v. Att’y Gen., 11-3157 (3d Cir. March 1, 2012), slip op. at 4 n.3. That is, the Third Circuit concluded from the government’s unchallenged descriptions of prior statements made by Ms. Vera and her father that Ms. Vera must have been admitted under the VWP, despite the lack of any documentation showing this to be true. This despite the fact that Ms. Vera was describing events that had happened more than 10 years ago, in September of 2000, when she was only 12 years old. Although hindsight is, to be sure, 20-20, it is problematic to expect someone to have definitive knowledge of what specific immigration-law provision she entered under many years ago during her childhood, and it is not that much better to rely on the recollection even of an adult layman regarding the legal details of an immigration-related event that occurred more than a decade ago.

One of the reasons that at our firm, and I suspect at most other firms practicing in the area of immigration law, prospective clients are asked to bring to the initial consultation any and all documents that may shed light on their immigration history, is that the vague recollection of a layperson regarding what formal program he or she may have entered under some time ago, and what may have happened since, is not particularly likely to be reliable when it is not backed up by documentation. Immigration law is incredibly complex. In softcover book form, the Immigration and Nationality Act alone is nearly four hundred pages long, and the related Title 8 of the Code of Federal Regulations is more than one thousand pages in length. There are also other federal regulations that relate to immigration law, various administrative handbooks of different agencies (such as the State Department’s Foreign Affairs Manual, or the Adjudicator’s Field Manual and Inspector’s Field Manual of U.S. Citizenship and Immigration Services and Customs and Border Protection respectively), and other government policy memoranda that will also sometimes need to be reviewed in order to determine precisely what has happened in a particular case. Moreover, not only the regulations and handbooks but the Immigration and Nationality Act itself can change frequently over time. The current version of the Visa Waiver Program, for example, was created by the Visa Waiver Permanent Program Act in October 2000, as explained by a 2004 Congressional Research Service report (see page 9)– that is, the current version of the VWP was created by statute after Ms. Vera’s September 2000 entry into the United States.

Because of the complicated nature of the immigration system as it exists today, and because of the equally convoluted history underlying today’s version of the immigration system, a non-lawyer who has gone through the immigration process will often mistake one status or legal mechanism for another. In this field, fallible memory is often no substitute for actual paperwork. That is particularly so when one is trying to reconstruct events that happened more than a decade ago. While it is sometimes the case that one must rely on human memory because no paperwork was issued at the time of a particular admission (such as when a car is “waved through” at a border post, which is still an admission for purposes of adjustment of status as explained by the Board of Immigration Appeals in Matter of Quilantan), that is different from relying on memory when government paperwork should exist according to the government’s theory of the case, but the government simply cannot find it.

The path taken by Ms. Vera’s case demonstrates why it is problematic to assume the truth of facts not explicitly conceded by a particular noncitizen, in the absence of records showing the truth of those facts, simply because those facts appear most consistent with the orderly functioning of the immigration system and the noncitizen is not sure of their falsity. While it is perhaps understandable that the Court of Appeals for the Third Circuit chose to rely on facts confidently asserted by the government and seemingly not disputed by Ms. Vera or her then-counsel prior to the Court’s original decision, the ultimate outcome of the case demonstrates that government assertions about someone’s immigration status are not necessarily true just because the subject of the assertions cannot with assurance recognize them as false.

Immigration law is sufficiently complex that it is easy for laypeople and even government bodies to make mistakes. One important way to guard against a mistaken reconstruction of significant details of a case’s history is to insist that the government prove its allegations are true, rather than merely assuming them to be true because an immigrant is unable to state with certainty that those allegations are false. Particularly when the right to a full and fair hearing regarding one’s potential removal is at stake, the better approach, as the Court of Appeals for the Second Circuit held in Galluzzo v. Holder, 633 F.3d 111, 115 (2d Cir. 2011), quoting from Johnson v. Zerbst, 304 U.S. 458, 464 (1938), is to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” If the government cannot produce documentation proving that a particular person actually entered under the VWP and actually signed a valid waiver of her right to contest removal, then the government should not be permitted to remove that person without a hearing.

Cora-Ann Pestaina

BALCA CLARIFIES DOL’S POSITION ON PROOF OF PUBLICATION OF THE SWA JOB ORDER AND ADS PLACED BY PRIVATE EMPLOYMENT FIRMS UNDER PERM

/0 Comments/in , /by

As usual, BALCA (Board of Alien Labor Certification Appeals) decisions are very important for practitioners as they offer crucial insights into how to avoid some of the pitfalls in preparing and filing a labor certification application under Program Electronic Review Management (PERM) or into what arguments can be made in response to the unfortunate receipt of a PERM denial notice. BALCA recently issued some notable decisions.

DOCUMENTATION OF THE SWA JOB ORDER
While the Department of Labor (“DOL”) is obsessed about the employer presenting proof of publication of its recruitment, BALCA recently held, in an en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), that based on the history of the PERM regulations and the plain language of 20 C.F.R. §656.17(e)(2)(i), proof of publication of the State Workforce Agency (“SWA”) job order is not required supporting documentation.
The PERM regulations at 656.17(e)(2)(i) require an employer filing a PERM application to place a job order with the SWA serving the area of intended employment for a period of 30 days. That same section of the regulations also states, “[t]he start and end dates of the job order entered on the application serve as documentation of this step.” Pursuant to 656.10(f), all documentation supporting the PERM application must be retained for five years after filing the application. 656.17(a)(3) mandates that the employer must furnish “required supporting documentation” to the Certifying Officer (“CO”) if the PERM application is audited. A substantial failure by the employer to provide the required documentation will result in a denial of the PERM application. 656.20(b).

In A Cut Above Ceramic Tile, the employer attested, on an ETA Form 9089 filed on January 8, 2007, that, as part of its domestic recruitment efforts for the position of Tile Setter, it placed a job order with the SWA in the area of intended employment from July 13 to August 12, 2006. On June 11, 2009, the DOL issued an audit notification, which included the request for a copy of the job order placed with the SWA downloaded from the SWA internet job listing site; a copy of the job order provided by the SWA; or other proof of publication from the SWA containing the content of the job order. As part of its audit response, the employer included a copy of its completed Employer Job Order Information Sheet from VaEmploy.Com, the SWA for the state of Virginia. Citing 656.20(b) as authority, the CO denied the PERM application based on the employer’s failure to provide proof of publication of the SWA job order containing the content of the job order, as requested in the audit notification letter. The CO found that the employer’s submission of the Employer Job Order Information Sheet did not show the final content of the job order as run by the SWA.

The Employer filed a motion for reconsideration of the PERM denial arguing that the PERM regulations provide that the SWA job order is documented by the start and end dates entered on the ETA Form 9089. The employer also argued that it had tried to obtain proof of publication from the SWA but had been informed that proof of the publication of its job order had been deleted. The CO affirmed the denial and forwarded to case to BALCA which also affirmed the denial and held that the employer’s documentation only showed that the job order was placed for the required 30-day period but did not provide proof of its contents.

The Employer then filed a petition for en banc review which BALCA granted to resolve the issue of whether a CO may deny certification of a PERM application based on the employer’s failure to provide proof of the publication of the SWA job order. BALCA invited the American Immigration Lawyers Association (AILA) to file an amicus brief which it did. There was a conflict between BALCA panels because, in another case, Mandy Donuts Corp., 2009-PER-481 (Jan. 7, 2011), a BALCA panel compared the PERM regulations at 656.17(e)(2)(i) on placement of the job order and the regulations at 656.17(e)(1)(i)(B)(3) and 656.17(e)(2)(ii)(C) on placement of a newspaper advertisement and pointed out that the PERM regulations for documentation of proof of newspaper advertisements specifically require the employer to provide copies of the newspaper pages in which the advertisement appeared or proof of publication furnished by the newspaper. The panel held that the PERM regulations only require “placement” of the job order for 30 days which is documented by the start and end dates entered on the PERM application.The en banc panel in A Cut Above Ceramic Tile agreed with the Mandy Donuts panel and held that the distinction in the regulations is clear. The drafters of the regulation could easily have included a requirement that employers provide proof of publication of the SWA job order. In fact, the regulations governing the placement of a job order for the H-2B temporary nonagricultural labor certification program, also administered by the Employment and Training Administration (“ETA”) specifically require that the employer maintain a copy of the SWA job order or other proof of publication containing the text of the job order. 656.15(e)(1). The en banc panel reasoned that the ETA intentionally drafted the H-2B and the PERM SWA job orders regulations differently. In fact the ETA specifically stated in its response to comments regarding the audit process, that the employer is only required to provide the start and end date of the job order on the application to document the job order has been placed and the gathering of additional information on the job order from the SWA will not be necessary. See ETA, Final Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 69 Fed. Reg. 77326, 77359 (Dec. 24, 2004). Essentially, the CO does not have the power to request just any type of documentation and the employer’s application may only be denied under 656.20(b) when the absent documentation is required.

While this en banc decision may appear attractive, and is certainly useful when inheriting flawed cases, practitioners ought to continue the practice of printing copies of the job order to demonstrate good faith recruitment. The BALCA en banc panel made sure to comment, in note 5, that “the spirit and the context of the PERM regulations, which are grounded in attestations backed up by retained documentation to support attestations, strongly suggest that an employer should retain and be able to produce documentation about the content and dates of action on all elements of recruitment. We would anticipate that most employers recruiting in good faith will have retained documentation in some form to show the content of the job order, and if so be able to produce it.” However, it is now clear that failure to produce the SWA job order cannot be the sole basis for a PERM denial.

THE USE OF PRIVATE EMPLOYMENT FIRMS TO CONDUCT RECRUITMENT

Under 656.17(e)(1)(ii), when conducting recruitment for a professional position, the employer must conduct three additional recruitment steps to advertise the position. The employer may choose from ten forms of recruitment including the use of a private employment firm or placement agency. 656.17(e)(1)(ii)(F) states:

The use of private employment firms or placement agencies can be documented by providing documentation sufficient to demonstrate that recruitment has been conducted by a private firm for the occupation for which certification is sought. For example, documentation might consist of copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment forms for the occupation involved in the application.

In Credit Suisse Securities, 2010-PER-103 (Oct. 19, 2010), BALCA rejected the employer’s argument that 656.17(f), requiring that advertisements placed in newspapers of general circulation or in professional journals state the name of the employer and provide a description of the vacancy specific enough to apprise U.S. workers of the job opportunity, was not applicable to the additional recruitment steps for professional occupations, and held that the regulation in fact governs all forms of advertisement. However, not all the additional recruitment methods for professional positions readily lend themselves to these requirements. For instance, when recruiting through private employment firms, it makes no business sense to indicate the name of the employer because an applicant could then bypass the headhunter and apply directly to the employer. Indeed, in Credit Suisse Securities, BALCA acknowledged in note 7 that the requirements of 656.17(f) only applies to advertisements, and that it was not making a determination with respect to job fairs, on-campus recruiting, private employment firms and campus placement offices.In World Agape Mission Church, 2010-PER-01117 (Mar. 23, 2012), the employer conducted recruitment for the professional position of “Pastor (Associate)” recruiting through a private employment agency as one of the three additional recruitment steps for professional positions. The CO issued an audit notification and, as part of its response to the audit notification, the employer submitted a letter from the private employment agency certifying that the agency had checked its database for any qualified applicants and had posted the job posting online. The job posting listed the job title, salary information, a job description, experience and education requirements, and that the position was full-time. The job posting was identifiable by a job number. The CO argued that the employer’s name must be included in an advertisement to ensure that the results of an employer’s test of the labor market are legitimate. The CO cited 656.17(f)(1), requiring that advertisements placed in newspapers of general circulation “name the employer.”BALCA noted its decision in Credit Suisse Securities but held that an advertisement placed by a private employment agency is different than one placed directly by the employer. BALCA referenced its decision in HSB Solomon, 2011-PER-2599 (Oct.25, 2011) that 656.17(f) does not apply to advertisements placed by private employment firms. However, World Agape Mission Church makes it clear that the employer still has a duty to recruit in good faith and to make the job opportunity clearly open to all U.S. workers even when using a private employment agency. Of particular note was the fact that the job posting provided applicants with sufficient information like the job title, job duties, and education/experience requirements, and even if it did not list the name of the employer, it listed a job number which matched the job number listed in the letter from the employment agency certifying its recruitment. This allowed the CO to match the listing to the agency’s advertisement even without the inclusion of the employer’s name in the posting.SUPERVISED RECRUITMENT

As the supervised recruitment train keeps barreling through, we have to keep on the lookout for any BALCA decisions to help guide us through the process. BALCA recently issued two decisions worth reading.In Kennametal, Inc., 2010-PER-01512 (Mar. 27, 2012), BALCA held that the employer had improperly rejected U.S. workers because it did not consider the possibility that certain applicants could become qualified after a reasonable period of on-the-job training. But most interestingly, BALCA held that the employer’s rejection of applicants for not possessing the requisite bachelor’s degree was unlawful and specifically listed examples of applicants who had an associates’ degree and 10 to 24 years of experience. BALCA held that because the employer indicated in its advertisements that it would “accept a combination of education, training and experience” (well-known to practitioners filing PERM applications as the Kellogg language based on Matter of Francis Kellogg, 94-INA-465 (Feb. 2, 1998) (en banc), the employer should have considered these applicants and interviewed them to further evaluate their skills. This is particularly interesting in light of the fact that the DOL routinely requests that employers list the Kellogg language in the supervised recruitment advertisements even where it is not applicable. Now, employers have to be alert to the fact that the DOL could then use that same Kellogg language against them to argue that they unlawfully rejected U.S. workers.In JP Morgan Chase & Co, 2011-PER-00635, BALCA upheld the CO’s denial of the PERM application under supervised recruitment because the employer did not list the addresses of the U.S. worker applicants in the body of its recruitment report as required under the supervised recruitment regulations at 656.21(e)(3) despite the fact that the employer had submitted copies of all the resumes which listed the U.S. addresses of the applicants.

Cyrus Mehta

Federal Court Reverses Unreasonable H-1B Denial For Market Research Analyst

/0 Comments/in , /by

Employers who file perfectly bonafide H-1B petitions for certain occupations face unreasonable denials from the USCIS. One H-1B occupation that is especially vulnerable to a denial is  Market Research Analyst. The USCIS’s rationale for the denial is that the occupation must require a degree in the actual position and not in closely related fields. Thus, even if it is acknowledged that a Market Research Analyst requires a degree in closely related fields such as business, marketing, economics, sociology or psychology,  but not  specifically in market research analysis, that can provide a basis for the USCIS to arbitrarily deny the H-1B petition. There is clearly no requirement that the specialized degree for entry into the occupation needs to be in a single academic discipline. This may be true for occupations such as law or medicine, but if the USCIS applies such narrow criteria, a lot of occupations will not qualify for the H-1B visa.

In Tapis Int’l v. INS, 94 F Supp. 2d 172 (D. Mass 2000), the beneficiary was sponsored for H-1B classification as a showroom manager  The petition was denied because the employer could not demonstrate that the position required a degree in showroom management, although the position required a degree in business administration, marketing or related field  as well as additional training or experience in the field of interior design.  In that case, the court reversed the denial on the ground that such a narrow agency interpretation would preclude any position from satisfying the “specialty occupation” requirements where a specific degree is not available in that field.

Yet, the USCIS continues to use this faulty interpretation in denying H-1B petitions. This is precisely what recently happened to an employer who sought H-1B visa classification for a foreign national in the specialty occupation of Market Research Analyst who had a degree in marketing and finance.  In Residential Finance Corporation v. USCIS, 2012 U.S. Dist. LEXIS 32220, decided on March 12, 2012, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio (Eastern Division) chided U.S. Citizenship and Immigration Services (USCIS) for denying an H-1B petition to a market research analyst with a bachelor’s degree in closely related fields.

The issue before the court in Residential Finance Corporation was whether USCIS was incorrect in concluding that there was not a”specialty occupation” involved.  The court noted that a specialty occupation is one that requires attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.  A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor’s Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance.  The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

“Perhaps most bewildering is that Defendant rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record,” the judge said.

Judge Frost continued: “Defendant continues to reject this record in favor of supporting a flawed denial. What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decision making.  Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved.”

The judge pointed out that USCIS expressly admitted “inexplicable errors” in its briefing, such as references to the wrong sections of the OOH, and that the agency’s decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.

Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested.  Instead, he said, they constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.” If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, “it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning.”  Noting that the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position, Judge Frost said that USCIS had ‘ignore[d] the realities of the statutory language involved and the obvious intent behind them.  The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.”

Judge Frost concluded that USCIS failed to meet the “fundamental threshold for rational decision making and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors.”  He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered that USCIS grant the petition and change the beneficiary’s status to H-1B nonimmigrant.

Employers and their attorneys should use these decisions to advocate for their clients in case the USCIS absurdly asserts that the position does not require a degree in a single academic discipline.  INA § 214(i) defines a specialized occupation as requiring “(A) theoretical and practical application of a body of specialized knowledge; and (B) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.”  While it is true that INA § 214(i) requires a bachelor’s degree in a specific specialty for the position to qualify under the H-1B visa classification, it should be argued that this section does not restrict it to a degree in a single specialty.  For instance, a position for a computer programmer analyst could require a bachelor’s degree in specialties such as computer science, management information systems, mathematics, engineering or closely related fields. All of these specialties could qualify a person for this specialty occupation.  Congress could not have intended that INA § 214(i) be restricted to a single specialty, namely, computer science, and preclude the demonstration of other specialties, such as mathematics or engineering disciplines, that could also qualify a nonimmigrant for the specialty occupation of computer programmer analyst.

If your case is denied, do not lose hope.  You can always litigate a good case in federal court and try to get the same favorable outcome as in Residential Finance Corporation and Tapis International.

Cora-Ann Pestaina

THE SUPERVISED RECRUITMENT ROLLER COASTER -THE RIDE THUS FAR

/2 Comments/in , /by

You filed a spotless labor certification. It was a perfect case, a perfect employer and a perfect employee with the perfect qualifications. Yet, one day, there it was in the mail. The dreaded Notification of Supervised Recruitment (“NSR”). The Department of Labor (“DOL”) had long advised to expect increased Supervised Recruitment. You knew the possibility of receiving an NSR existed and had advised your client accordingly. Still, its arrival was disappointing. Initial indignation (“How dare they?”) gave way to resignation (“Oh well, that’s just the way the cookie crumbles.”) to actual enthusiasm (“Hey, this will give me chance to finally see what this crazy process is about!”). And so, assuring your client that all will be well, you took their hand and boarded the Supervised Recruitment roller coaster.

The DOL is authorized, under 20 C.F.R. § 656.21, to conduct Supervised Recruitment.  The article by Cyrus Mehta, Maggie Murphy and David Ware, Supervised  Recruitments in Tough Economic Times – Practical Tips For Compliance quoted Solicitor of Labor Gregory F. Jacob who said, “Supervised Recruitment is one of many tools the [Department of Labor] uses to safeguard the integrity of the permanent labor certification process and protect job opportunities for American workers. The department takes seriously its statutory responsibility to ensure that American workers have access to jobs they are qualified and willing to do.” This article also indicated that the DOL will target employers in industries with publicized layoffs in specific geographic locations, e.g. employers in the financial industry in New York City. The DOL may also target employers in the computer and auto industries. The DOL has begun to make good on its threat to increase Supervised Recruitment and like most practitioners, I am currently in the middle of the Supervised Recruitment process, with no telling where this ride will take me next. Based on experiences thus far, here is some of what can be expected.

Requests for extension may/may not be granted

The NSR describes the steps involved in the Supervised Recruitment process and gives the employer 30 calendar days, from the date of the NSR, to submit a draft advertisement and any additional information requested in the NSR. The NSR also indicates that the employer may submit a timely request for one extension of the 30-day timeframe by e-mailing the DOL at SR.processing@dol.gov. A good reason for an extension would be that you are a new attorney of record. However, the employer cannot rely on the mere timely submission of an extension request. The request must be officially granted.  The problem is that the DOL may respond within 1-2 days; may take longer than a week to respond; or may not respond! Moreover, there is also no guarantee that the response will be favorable. Because of this uncertainty, it is best to begin to prepare a response to the NSR which can be timely filed in the event that no response from the DOL has been received.

The requirements for the advertisement are different

The NSR lists the required content for advertisements. One immediately becomes aware that the rules under Supervised Recruitment are different from the PERM rules. Under Supervised Recruitment, the advertisement must contain the job title; the job duties; the work schedule; the education and experience requirements; the geographic location(s) of employment; the Kellogg language, “Any suitable combination of education, training or experience is acceptable;” the offered wage; and a list of any training to be provided to employees. The advertisement must direct applicants to submit their applications to the DOL’s Recruitment and Employment Office.

The NSR may also request additional documentation. For example, the DOL may require the employer to “explain any limitations on training…with regard to [the offered] position.” The DOL does not clarify what is meant by this request but asks that the employer note that a worker is able and qualified for the job opportunity if the worker can acquire the skills necessary to perform the duties involved in the occupation during a reasonable period of on-the-job training.

Requests for additional information

Once the draft advertisement has been submitted, the DOL may request additional information. For example, a draft ad requesting that applicants “must be willing to work in unanticipated locations across the US” may elicit a request that the employer establish the business necessity for this requirement. The employer will be given 30 calendar days from the date of the request within which to submit its response.

Making changes to the ad after it has been submitted

Once the draft advertisement has been submitted, it may be possible to make amendments to the ad by e-mailing the DOL. For instance, in one case, after the draft advertisement had been submitted to the DOL, the employer asked whether it could indicate that there were multiple, identical positions available within the company. The DOL responded favorably to an e-mail inquiry requiring only that the specific number of positions be indicated. However, it may not be possible to make a drastic amendment to the advertisement from what was stated in the PERM form.

Issues with recruitment

Once the employer’s draft advertisement has been approved, the DOL will issue its Recruitment Instructions.  The Recruitment Instructions are specific instructions informing the employer where and when the advertisement must run. Again, here, the recruitment process will differ from what is required under PERM.  For example, for a professional position, the DOL may require that a 30-day job order be placed with the State Workforce Agency (SWA); that the ad run in a specific major newspaper and online for 3 consecutive days including a Sunday; that the ad run on the employer’s website for 7 consecutive days; that the ad run on 2 other websites for 7 consecutive days; and that the employer post the Notice of Filing for 10 consecutive business days.  All of the recruitment must commence within 15 days of the date of the Recruitment Instructions notification.

The problem is, sometimes, it takes several days for the Recruitment Instructions notification to arrive in the mail. By the time the instructions arrive, the employer may only have 10 days left of the initial 15 days. Then, the employer may encounter problems with some of the recruitment steps. For instance, depending on the particular SWA, it may take up to 7 days to post the job order. To make matters worse, some SWAs may edit the posting (e.g. directing that applications be sent to the employer’s headquarters).  Some SWAs are notorious for randomly editing the job order even after it has been posted for a few days.  The word “sabotage” inevitably comes to mind but I digress. It is important to constantly and painstakingly check the contents of the job order.

Sometimes, the DOL will instruct that the advertisement be placed in the most expensive newspaper of general circulation. For instance, the DOL may instruct that an advertisement for a professional position in Edison, New Jersey, run for 3 consecutive days including a Sunday in the New York Times when the New Jersey Star Ledger is a perfectly appropriate and less expensive newspaper. Considering the extensive requirements for the advertisement (discussed above), it may cost several thousand dollars to run the ad in the newspaper.  Of course, the employer may e-mail the DOL to request a change of newspaper. But again, the DOL may respond in 1-2 days, may take a long time to respond or may never respond. Oftentimes, the employer is forced to simply pay the advertising fees.

The employer is required to e-mail a recruitment schedule to the DOL, no later than 15 days after the last placed advertisement.

Resumes

The DOL will not wait to gather any number of resumes but will forward them to the employer as they are received. In some cases, the resumes will only be sent to the attorney and in other cases, the attorney will only be cc’d on the communication.  If an attorney receives a resume, it is important that this be forwarded to the employer immediately upon receipt so that it can be appropriately evaluated. Also, it is important that the attorney not evaluate the resume before the employer does. Remember the DOL insists that the employer first consider a US worker applicant and not the attorney.  Employers are also required to consider any resumes that may be sent directly to them.

Expected next steps are that the DOL will issue its request for the final written Recruitment Report and will issue a determination whether to grant or deny the application.

I am sure that practitioners can provide countless anecdotes on their experiences with Supervised Recruitment. The only thing I think we can count on is that Supervised Recruitment is not going away. Stay tuned for more highlights from this journey that I have just embarked upon.

Cyrus Mehta

EDGE SAYS INDIAN 2- YEAR MASTER’S DEGREE FOLLOWING 4-YEAR BACHELOR’S IS NOT EQUIVALENT TO US MASTER’S DEGREE

/1 Comment/in , /by

Determining whether a foreign degree is equivalent to a US degree is crucial for an employment-based immigrant visa petition. Within the US employment-based preference system, being classified under the Employment-based Second Preference (EB-2) puts one at a significant advantage over one who is classified under the Employment-based Third Preference (EB-3). There is no backlog in the EB-2 for most countries while the EB-3 is hopelessly backlogged, Even if the EB-2 for countries like India and China is backlogged, it is less so than the EB-3. Indeed, the EB-3 backlog for India is unimaginable and totally untenable. It is estimated that it will take 70 years for the green card for a person from India who establishes his or her priority date in 2012!

To be classified under the EB-2  pursuant to section 203(b)(2) of the Immigration and Nationality Act, the position must require an advanced degree or its equivalent, which the USCIS in 8 CFR section 204.5(k)(2) defines as a foreign equivalent 4-year bachelor’s degree plus five years of post baccalaureate experience.

In the United States, one normally obtains a master’s degree after completing a 2-year program following a 4-year bachelor’s degree. Thus a student has to undertake 6 years of study in order to be awarded a master’s degree from an accredited US college or university.

It has generally been assumed that a foreign master’s degree, obtained after 6 years of education, would generally be equivalent to a US master’s degree.  EDGE (Electronic Database For Global Education), administered by the American Association of Collegiate Registrars and Admissions Officers provides information on foreign degree equivalence from educational institutions from around the world. It is treated as gospel truth by the USCIS in determining whether a foreign degree is equivalent for immigration purpose. Till recently, EDGE has correctly said that an  Indian 4-year degree, such as a Bachelor of Technology degree, followed by a 2-year master’s degree, is equivalent to a US master’s degree. On the other hand, a master’s degree following a 2- or 3-year Indian bachelor’s degree only equated to a US bachelor’s degree and not a master’s degree.

It has recently come to our attention, thanks to Natalie Muehlberger of Trustforte Corporation, that EDGE has recently downgraded many Indian master’s degrees. This is how EDGE, a paid  service, describes it now:

Credential Description

Awarded upon completion of 1.5-2 years of study beyond the three-year bachelor’s degree or four year BTech or BEngr degree.

Credential Advice

The Master of Science represents attainment of a level of education comparable to a bachelor’s degree in the United States. 

Thus, regardless of whether the master’s degree is obtained after a 3- year or a 4- year bachelor’s degree program in India, EDGE is now equating both to a US bachelor’s degree. This downgrade of Indian master of science degrees would impact those who would otherwise qualify under the EB-2 as the USCIS closely relies on EDGE. We do hope that EDGE realizes that it is wrong and reverts to its earlier assessment that a master’s degree, following 6 years of education, is equivalent to a US master’s degree and not a bachelor’s degree. In addition, EDGE has also downgraded the Indian MBA, regardless of whether it was preceded by a 4-year engineering degree and the Indian master of science by research degree (which no longer appears in EDGE at present). While EDGE used to maintain that  2 years of coursework in business management leading to a post-graduate diploma from the prestigious Indian Institute of Management, India, was  comparable to a master’s degree in the United States, this degree to has been downgraded to equate to only a US bachelor’s degree since only a three year bachelor’s degree is required

[Updated on 9/2/2013]. EDGE also still finds that an Indian master of technology or engineering degree, and master of computer applications degree, is  equivalent to a US master’s degree. The same logic should hold true for other Indian master of science and MBA degrees, following a 4 year bachelor degree. It is therefore important to constantly check the foreign national’s educational credentials with EDGE before embarking on an employment-based green card sponsorship.

Since USCIS follows EDGE, the beneficiary of an I-140 petition with an Indian master’s in the above situations may be only able to qualify under the EB-2 if he or she can demonstrate a bachelor’s degree (since this master’s degree will still equate to a single source bachelor’s degree) plus 5 years of progressive experience following this degree. If the beneficiary does not have the 5 years of post-baccalaureate experience, he or she will have no choice but to be classified under the EB-3, and if born in India, the green card will materialize after decades.

If EDGE does not revert to its original position with respect to Indian master of science degrees and the MBA, petitioners and their attorneys should still endeavor to convince the USCIS, or then litigate before the AAO and in federal court, that a 2-year Indian master of science degree following a 4- year bachelor’s degree ought to be comparable to a US master’s degree.   In a 2009 USCIS liaison meeting, the agency indicated that it would still be receptive to arguments notwithstanding a contrary EDGE finding:

USCIS considers all sources, including EDGE and AACRAO databases, and has received many evaluations where the evaluators list membership in AACRAO in their credentials and list AACRAO publications as their reference materials. USCIS adjudicators review all evidence in the record and make determinations based on the individual facts of each case. The AAO’s decisions are available to the public and provide an extensive compilation of the results of its findings as to the equivalency of particular foreign degrees. 

The USCIS pursuant to its 2009 guidance ought to be receptive to arguments that an Indian master’s degree following 6 years of post-secondary education is functionally equivalent to a US master’s degree. Otherwise, the EDGE downgrade with Indian master of science and other degrees will strike another blow to Indians, who will then be endlessly mired in the EB-3 even though they qualify for a position that requires an advanced degree. It will also be another example of how the USCIS constantly shifts the goal posts concerning foreign equivalent degrees, adversely and unfairly impacting mostly skilled foreign nationals with Indian degrees.

(The blog was amended on January 18, 2012 to clarify that the downgrade only applies to Indian master of science degrees and a few other degrees but not all Indian master degrees)

UPDATE: EDGE FLIP FLOPS – SHOULD USCIS BE RELYING ON EDGE SO SLAVISHLY?  – JANUARY 20, 2012

The author has learned today that EDGE has again reverted to its former position. It has deleted within the entry that a master of science degree beyond a 4 year degree is equivalent to a US bachelor’s degree. It leaves intact within that entry that a master’s degree following a 3 year bachelor’s degree is equivalent to a US bachelor’s degree. Does this mean that a master of science degree following a 4 year bachelor’s degree is equivalent to a master’s degree? We hope that the USCIS follows this logic and agrees. On the other hand EDGE now has an entry , and this is very strange, indicating that the master of engineering or master of technology degree following a 4 year bachelor of technology or bachelor of engineering degree is equivalent to a US bachelor’s degree. This cannot be the case and must be an error!  In yet another entry, EDGE says that an Indian master of physiotherapy, master of science (nursing), master of science in engineering/technology, master of pharmacy and master of laws, following 4 or 5 year bachelor degree programs is equal to US master’s degree. All this is completely inconsistent with the downgrade, and results in uncertainty for those who rely on EDGE in filing immigrant visa I-140 petitions to get classified under the EB-2. Perhaps, USCIS, given these flip flops and inconsistencies, should no longer treat EDGE as the gospel truth with respect to determining whether these degrees are equivalent to US degrees, and give more credence to justifications provided from other reliable sources determining the accurate equivalence of such degrees.

Cyrus Mehta

TOP 10 POSTS ON THE INSIGHTFUL IMMIGRATION BLOG IN 2011

/0 Comments/in , /by
Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs in 2011. We will continue to provide insightful commentary on contemporary immigration issues in 2012, and wish all of our supporters and well wishers a very happy New Year! 

1. PREVAILING WAGE DETERMINATIONS SUSPENDED UNTIL FURTHER NOTICE: HOW DO I FILE A PERM LABOR CERTIFICATION? http://cyrusmehta.blogspot.com/2011/08/prevailing-wage-determinations.html

2. IF EVEN THE CHIEF JUSTICE CAN MISUNDERSTAND IMMIGRATION LAW, HOW CAN WE EXPECT STATES TO ENFORCE IT PROPERLY? REMOVAL ORDERS AND WORK AUTHORIZATION http://cyrusmehta.blogspot.com/2011/06/if-even-chief-justice-can-misunderstand.html

3. RIGHT TO APPOINTED COUNSEL IN REMOVAL PROCEEDINGS? THE SUPREME COURT MAY HAVE OPENED THE DOOR IN TURNER v. ROGERS http://cyrusmehta.blogspot.com/2011/06/right-to-appointed-counsel-in-removal.html

4.VISA OPTIONS FOR FOREIGN ENTREPRENEURS IN THE US – WHILE KEEPING AN EYE ON THE POTENTIAL TRAPS AND PITFALLS http://cyrusmehta.blogspot.com/2011/11/visa-options-for-foreign-entreprenuers.html

5. DO WE HAVE A START-UP VISA FOR ENTREPRENEURS EVEN WHEN CONGRESS HAS NOT LIFTED A FINGER? http://cyrusmehta.blogspot.com/2011/08/do-we-have-start-up-visa-for.html

6.THE ABSURDITY OF THE BIRTHRIGHT CITIZENSHIP ACT OF 2011 http://cyrusmehta.blogspot.com/2011/01/absurdity-of-birthright-citizenship-act.html

7. HOW FAIR IS THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT? http://cyrusmehta.blogspot.com/2011/12/how-fair-is-fairness-for-high-skilled.html

8. BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION’S VALIDITY PERIOD http://cyrusmehta.blogspot.com/2011/06/balca-gets-it-right-recruitment-and.html (but see update, BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD http://cyrusmehta.blogspot.com/2011/12/balca-en-banc-speaks-on-recruitment-and.html)

9. B-1 IN LIEU OF H-1B VISA IN JEOPARDY: DON’T THROW THE BABY OUT WITH THE BATHWATER http://cyrusmehta.blogspot.com/2011/05/b-1-in-lieu-of-h-1b-visa-in-jeopardy.html

10. IT’S 9:OO A.M.- DO YOU KNOW WHERE YOUR H-1B EMPLOYEE IS? AN OVERVIEW OF FDNS SITE VISITS http://cyrusmehta.blogspot.com/2011/12/its-9oo-am-do-you-know-where-your-h-1b.html

Cora-Ann Pestaina

BALCA SAYS THERE IS NO NEED TO LIST EVERY BENEFIT OF EMPLOYMENT IN JOB ADVERTISEMENTS

/1 Comment/in , /by

by Cora-Ann V. Pestaina

To practitioners who file numerous PERM applications, the Department of Labor’s (DOL) philosophy of solely protecting the U.S. labor market without regard to employers’ efforts, its constantly shifting goal posts, and its frightful game of “gotcha” which we involuntarily enter whenever we file a PERM application, have sadly all become par for the course. But, every so often, a valiant employer fights back and in recent times we have seen the Board of Alien Labor Certifications (BALCA) demonstrate more reason in its decisions. Matter of Emma Willard School, 2010-PER-01101 (BALCA, September 28, 2011) reveals the most recent case of the DOL’s game of “gotcha.” In that case, BALCA held, reversing the Certifying Officer (CO), that there is no obligation for an employer to list every item or condition of employment in its advertisements and listing none does not create an automatic assumption that no employment benefits exist. As a background, an employer has to conduct a good faith recruitment of the labor market in order to obtain labor certification for a foreign national employee. Obtaining labor certification is often the first step when an employer wishes to sponsor a foreign national employee for permanent residence. Under 20 C.F.R. §656.17(f)(7), advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered the alien.”

In Emma Willard School, the employer, a boarding school, conducted a recruitment effort for the position of “Spanish Instructor” and timely filed an ETA Form 9089. The CO issued an audit notification requesting that the employer submit “a detailed explanation indicating the reason the foreign worker currently resides with the employer.” In its timely response, the employer submitted documentation of the school’s philosophy, which states that the school “offers housing as a resource that benefits the faculty, staff, and program” and that a “significant majority” of teachers and key administrators live in school owned housing. The school’s housing guidelines indicated that the school provided on-campus housing, off-campus housing and dormitory apartments to selected faculty and staff as a benefit of employment.

The CO denied the PERM application citing six reasons for denial, all related to the employer’s failure to indicate, in its advertisements and Notice of Filing, the benefit of employer-subsidized housing. Four of the reasons for denial fell under 20 C.F.R. §656.17(f)(7). According to the CO, because the employer’s advertisements in the newspaper of general circulation, in a local or ethic paper, on the employer’s website and on job search websites did not indicate that the employer offered subsidized housing, the advertisements did not comply with 20 C.F.R. §656.17(f). Because the Notice of Filing also did not list this benefit, one denial reason fell under 20 C.F.R. §656.10(d)(4), which requires that the Notice of Filing contain the information required for advertisements. The final reason for denial fell under 20 C.F.R. §656.10(c)(8), which requires an employer to attest that “the job opportunity has been and is clearly open to any US worker.” The CO held that because the employer did not list the benefit of subsidized housing in its recruitment, the recruitment contained terms and conditions of employment that were less favorable than those offered to the alien, thereby disaffirming the employer’s attestation that the job is open to any US worker.

The employer submitted a request for reconsideration of the denial arguing that the regulations do not mandate that benefits be listed in advertisements. The CO forwarded the case to BALCA. In its brief to BALCA, the employer made the obvious point that many advertisements do not list employment benefits such as health insurance and vacation.

BALCA analogized the issue to the case of an employer not listing the offered wage in its advertisements. The choice not to list the offered wage would not lead to an assumption, on the part of the US worker, that the employer is offering no wage. Similarly, the employer’s choice not to list employment benefits would not lead a US worker to assume that there are no benefits involved in the position. BALCA held that the employer’s recruitment did not contain terms or conditions less favorable than those offered to the alien simply because the employer did not list wages or benefits of the position.

At every step of the persnickety PERM process the DOL claims it is only doing its job to protect US workers, but here it appears that BALCA is finally giving US workers the credit they deserve for being intelligent enough to recognize that a tiny advertisement could not possibly list ALL the terms and conditions of employment. Perhaps BALCA recognized that any US workers who were interested in the position with Emma Willard School would have naturally contemplated whether the boarding school provided boarding to its employees! Therefore, the employer’s decision not to list the subsidized housing benefit in the ad in no way deterred US workers from applying for the position.

Yet, careful not to paint with too broad a brush, BALCA made sure to limit its decision to the facts of the case and to state that “this decision should not be construed as support for an employer never having to offer or disclose a housing benefit to US workers.” Despite BALCA’s timidity, this decision is significant and bears on other situations as well. For instance, an employer whose PERM application was denied because the recruitment did not list a “work from home” benefit, might be able to argue, under Emma Willard School, that it was not required to list all benefits in its recruitment. While the DOL may argue that a “work from home” benefit is different from the subsidized housing benefit, the employer choosing to not list the “work from home” benefit should not serve to deter any US workers from applying for the position especially if the advertisement was placed in a national magazine. US workers are savvy and well aware of the increasing flexibility offered by employers with regard to where they perform the duties of the job. A prospective applicant can also inquire about this, and the advertisement on its own, without the listing of a “work from home” benefit should not deter US workers from applying for the position.

When will the DOL come to realize that US workers are smart enough to discern job advertisements themselves, and do not need this kind of misguided protection resulting in the needless denial of a labor certification for a much needed foreign national worker?