Tag Archives: business immigration

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.

USCIS Must Notify Employee and Employer

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Court Rules USCIS Must Notify Employee and New Employer in Revoked Visa Case

The US Court of Appeals for the Second Circuit rendered a decision that has meaningful impact for thousands of nonimmigrant employees in the United States. The appellate court ruled that US Citizenship and Immigration Services has to provide notice of its intent to revoke an immigrant visa petition to the employee who will be affected by the potential revocation. For someone who is the beneficiary of an employment-based visa petition, this means that individuals must be provided notice. The ruling declared that USCIS must give notice to all actually affected, which can mean the employee who ported to a new job or the new employer.

The basis for the lawsuit was an employee had submitted an application for a Green Card based on an approved visa petition. Although employment-based visas are dependent on employers, employees are allowed to switch jobs. This can wrangle employers, who have made the investment in the employment-based visa for their employees. The employee changed jobs, USCIS decided to revoke the approved visa petition and it sent notice only to the first employer (who had filed for the visa.). The employee and her new employer did not learn about the revocation until it was too late. USCIS denied the Green Card application the employee filed because of the revoked visa petition. The Service also denied the employee’s attempts to reopen the visa revocation.

There is a jurisdictional issue at play. The Second Circuit Court of Appeals sits in New York and covers New York, Connecticut, and Vermont. Its decision is not binding nationwide. The American Immigration Council and American Immigration Lawyers Association are advocating for USCIS to adopt the Second Circuit’s logic and decision.

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New Rules for EB-1 Immigrants and H-1B1, E-3, and CW-1 Nonimmigrants

The Department of Homeland Security has published new rules affecting the following groups: EB-1 outstanding professor and research immigrants; H-1B1; E-3, and CW-1 nonimmigrants. The final published rule takes effect February 16, 2016.

H-1B1 and principal E-3 nonimmigrants are authorized for employment incident to their status with a specific employer. That means nonimmigrants in those classes can work for their sponsoring employer without having to obtain an employment card separately.

H-1B1 and principal E-3 nonimmigrants who have expired status while their employer’s timely filed extension of stay request is pending can continue their employment with that employer for 240 days.

DHS is allowing for continued employment authorization for CW-1 nonimmigrants with expired status while their employer’s timely extension request remains pending.

EB-1 outstanding professions and researchers can provide the same types of evidence as the other EB-1 categories.

DHS is trumpeting these rules as enhanced opportunities for employers and highly skilled workers.

H-1B Visa Article

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H-1B Visa from Houston

H-1B VisaThe Houston Chronicle published an article on H-1B visas, angling with the usual focus on Silicon Valley but also adding a focus on Houston. It notes that Houston is a city with many businesses relying on the H-1B visa, which allows skilled foreign national workers to work in the United States with a sponsoring employer for a maximum of two 3 year periods.

The article’s focus (outside the geographic locations) is on the number available. It recites the history of the H-1B visa: Congress set a cap of 65,000 in 1990 and added 20,000 visas with a specific Master’s and above category in the United States. There is an unfortunate conflation with the H-1B visa as the sole work visa program, as there are plenty of other employment-based visas in the United States: E, L, O, P. Regardless, the article’s concentration on the H-1B visa situation highlights the geographic and wider country limits on the visa and how certain employers are lobbying for more availability. The cap has not always remained stagnant. There was a period of increasing availability that ended in 2004. (the article omits this).

The practical implications of the low supply of H-1B visas versus the high demand is that applicants are subject to a lottery. Rather than being adjudicated on the merits, the application must first be selected to be adjudicated. Last year, there were 250,000 applications vying for adjudication. All H-1B visa applications must be submitted within a specific timeframe and the visa, if approved, begins on October 1. There are exceptions, as there are certain H-1B visas that are “cap-exempt.”