DHS Raids Continue

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Raids Continue:

DHS Specifically Targeting Orders of Removal in Absentia

The Department of Homeland Security has continued its raids on Central American immigrants who have orders of removal in absentia. These raids started in January of this year. The raids have continued in spite of DHS apprehensions of unaccompanied children or children with family members falling. The Democratic party is fissured over these raids. About half of the Democratic members of Congress have criticized the continuing raids.

H-1B Extension Delays

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H-1B Extension Delays in Processing Times

H1b 2016

A recent problem in USCIS adjudications is lengthy processing times for H-1B extension applications. These are applications filed without premium processing. The delays are problematic: they force employers to fork over the $1,225.00 for premium processing, and they can cause significant hardships for affected employees. USCIS Service Center Operations has acknowledged that the lengthy processing times are a problem and USCIS is working on reducing those times.

American Immigration Lawyers Association is working with USCIS to reduce the processing time. The main issues are employees in danger of losing employment authorization or were otherwise forced to request an upgrade to premium processing as a result of the backlog; and (2) clients with a pending H-1B extension petition, where the H-1B beneficiary is within one month of the expiration of the automatic 240-day employment authorization extension.

It is important to consult with the attorney filing your H-1B application whether premium processing is necessary. Both service centers are close to 6 months in processing time. That means an application submitted today would not be adjudicated until the end of July or beginning of August. Premium processing forces a decision within 15 days.

BALCA Overturns Denial

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BALCA Overturns Denial: Employer’s Name Different 

 

The Board of Alien Labor Certification Appeals overturned a denial where the employer’s name on the Department of Labor form differed from its name on the State Workforce Agency order. The position that was open was for “Food Service Manager.” The Certifying Officer audited and denied the application for the discrepancy in the employer’s names. The Officer’s basis was that the discrepancy misinformed potential job applicants about the identity of the employer, so that there was not a job opportunity clearly open to any US worker. BALCA reversed the denial because the discrepancy would not confuse potential applicants about the employer’s identity.

BALCA Sides with Employer

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BALCA Victory for Employer: Typo Overturned

USDOL_Seal_circa_blue_2015The Department of Labor is usually unforgiving of typographical errors. The smallest thing askew can sink an entire PERM application. BALCA recently decided a case that overturned a typographical error.

The employer’s submitted job requirement was a Bachelor’s Degree and 60 months of experience. In the alternative, it would accept a Master’s Degree and 36 years of experience. That was a typo; the employer meant 3 years (36 months). The certifying officer for the Department of Labor refused certification, finding that the alternative requirement was not substantively similar to the primary experience requirement. On appeal to BALCA, the employer argued that the form was inconsistent. The primary requirement demanded months. The alternative requirement demanded years.

BALCA has held previously that denials based on typographical errors can violate fundamental fairness. Fundamental unfairness occurs when the denial is made because the instructions conflict with the form and the requirements are satisfied in good faith. Inconsistencies are construed against the promulgator of the form, not the applicant. The box states years; the instructions state months. BALCA found that the alternative requirements were substantially equivalent to the primary requirements.

Employment Authorization Lawsuit

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Class Action for Late Employment Authorizations

The Northwest Immigrants Rights Project and The Advocates for Human Rights, using 3 immigrants as plaintiffs, have filed a class action lawsuit against USCIS. The lawsuit was filed in May 2015 and the organizations filing the lawsuit are seeking immigrants they can include in the lawsuit. The claim in the class action suit is that USCIS is taking longer than 90 days to adjudicate Employment Authorization Cards. Federal regulations dictate that USCIS must decide whether an applicant receives a card within 90 days of receiving the application.  The lawsuit charges USCIS with not adhering to the mandatory 90 days.

Employment Authorization Cards are important for many reasons, chief of which is granting someone the legal authority to work. A person can apply for the card for a variety of reasons. Someone applying for an adjustment of status may want the card while the application is pending. An asylum applicant waiting 2.5 years for the interview can obtain the document and work. A VAWA applicant, qualified H-4 dependent, E-2 dependent, DACA recipient, and host of other categories of foreign nationals in the United States can benefit from the Employment Authorization Card. Not having possession of a valid card can have dire consequences for applicants, who need the card for legal work authorization.

The American Immigration Council has a call out for immigrants who believe they have been affected by late adjudications.

With this in mind, it is crucial to file for your employment authorization card as timely as possible. Most applications require a $380 filing fee, so it is important to file on time, meet the requirements, and plan financially.