Section 204(j) provides that an approved Form I-140 petition for certain classifications remains valid for adjustment of status when an applicant switches jobs or employers if:

• The adjustment of status application has been filed and remains unadjudicated for 180 days or more, based on an employment-based immigrant visa petition AND
• The new job is in the “same or a similar occupational classification” as the job for which the petition was filed.

A new policy memorandum has been issued to assist immigration officers in determining what qualifies as a same or a similar occupational classification and which evidence should be used in making that determination. They are instructed to examine the job duties of the former and new job and skills, experience, education, training, licenses, and certifications required. Wages can also be important. The policy memorandum also repeats that a preponderance of the evidence standard is to be utilized.

Immigration officers are supposed to treat evidence favorably if the applicant establishes that the previous and new job are within the same broad occupation code in determining whether the two positions are similar. The memo gives the example of Computer Programmers, Software Developers Applications, Software Developers Systems Software, and Web Developers being found within the same broad occupational group of Software Developers and Programmers. It also gives warning: just establishing that the two jobs are described within the same broad occupation may not be enough for the two jobs to be in similar classifications for a preponderance of the evidence.

Of note, the memo dedicates analysis to career progression. It continues the analysis under the totality of the circumstances and preponderance of the evidence guidance. The analysis may be more straightforward when the promotion is to a more senior position that does not involve managerial or supervisory duties. The analysis becomes complicated when that transition is to a position that involves a managerial or supervisory role.

For that second scenario, the memo instructs that if the applicant establishes in the new job that she will be “primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, the immigration officer can treat that evidence in the applicant’s favor for determining similar occupational classifications. The example used is a cook advancing to a food service manager. A food service manager supervises restaurant cooks and other individuals in similar positions.

There may also be situations where a normal career progression does not involve managing persons in jobs that in the same or similar occupational classification as the applicant’s original position. The example used is a cook that becomes a food service manager, while retaining many of the original job duties. That position may be devoid of supervisory duties, but the applicant would be able to demonstrate similar occupational classifications based on functions.

The memorandum is lengthy and detailed, delving into many scenarios that immigration officers encounter as they adjudicated portability petitions. Portability is an important provision of the AC21 law enacted in 2000. The express purpose of that law was to increase job flexibility for foreign workers who are stuck in delays and backlogs in the employment-based immigrant visa process.

The post Employee Portability appeared first on Wood Immigration Law.

Continue to expect delays in receiving Prevailing Wage Requests from the Department of Labor. The Department of Labor held a meeting and addressed the delay in returning Prevailing Wage Determinations. The Prevailing Wage Determination is the important first step for an employer to take in sponsoring for a permanent position. The Department of Labor has a stated goal of 60 days to analyze the Prevailing Wage Request and made a determination. The wage that it determines is necessary for the position is the minimum wage that the position can pay.

The Department has announced that stakeholders should expect determinations to take at least 75 days. The online system is supposed to speed up the process, but the increase in prevailing wage requests versus the stagnation of funding and resources, according to the Department of Labor, has forced the return times to lengthen.

The post Prevailing Wage Delays appeared first on Wood Immigration Law.

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.

The post BALCA Overturns Denial appeared first on Wood Immigration Law.

The 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.

The post BALCA Sides with Employer appeared first on Wood Immigration Law.

The spate of immigration-related executive orders announced by President Obama in November 2014 has received attention because of the proposed expansion of DACA and the addition of DAPA (Deferred Action for Parents of Americans). While these provisions are being litigated, there are other immigration aspects of the executive orders that are being placed into practice. One of those is the modernization of the visa system. The October 2015 Visa Bulletin is the inaugural “modernized” visa system.

There are now two charts available per visa preference category. The Visa Bulletin will display Application Final Action Dates and Dates for Filing Applications. The Final Action Dates are when the visas can be issued. The Filing Applications Dates are the earliest an applicant may apply for Permanent Residence.

There are many individuals in the United States who have an approved PERM (Permanent Labor Certification) petition, but have not been able to apply for their Green Cards because they are waiting in lines. An Indian national might have his EB-2 PERM petition approved from October in 2010 but still be waiting in the line. While this does nothing to change the line, it provides guidelines on when individuals can file and get the Permanent Resident process started. Another benefit for someone in that situation is that he can change his employment without injuring his chances for permanent residence. The American Competitiveness Act allows for this change in employment.

The other benefit is that this normalizes the chasm in procedures of the Department of State (DOS) and USCIS. DOS handles applications filed abroad and USCIS adjudicates domestic petitions. DOS permitted the application process to begin based on its estimates of when the process would finish and a visa would be needed. USCIS forbade applications until a visa was available. This disparate system caused fluctuations in visa availability and the loss of visas that could be issued in a year. The syncing of procedures should help smooth out the disparities.

For an aspiring American Permanent Resident, the Visa Bulletin is the monthly release that informs you whether you are moving closer to a Green Card or further. It is divided by countries (“chargeability” – India, China, Philippines, Mexico, and everyone else) and by category in both the family and employment categories.

The employment category are broken into five tiers from EB-1 down to EB-5. The family category is organized by five tiers, as well, depending on the status of the person sponsoring the foreign national and her relationship to the foreign national. For example, a US citizen sponsoring her brother is in FB-4.

The Department of State releases the monthly visa bulletins based upon visa availability for the remainder of the fiscal year. The numbers are calculated on the follow factors: qualified visa applicants, pending adjustment of status applications that USCIS has, and the historical drop off rates through denials, withdrawals, and abandonments of petitions.

The post Modernized Visa Bulletin appeared first on Wood Immigration Law.

The Office of Foreign Labor Certification released statistics for the first quarter of the 2015 Fiscal Year (starting October 1) on the whole range of employment based certification for foreign workers. A function of the Department of Labor, the FLC is tasked with certifying the H-1B visa labor conditions and permanent employment labor certifications.

The statistics for the first three months of the fiscal year reveal that over 80,000 H-1B applications were received, the overwhelming majority of which are in the computers realm – Computer Systems Analysts, Software Developers, Programmers, and other Computer Occupations dominate the list of certified positions. There is also nothing surprising about the states leading the way in H-1B applications: California, Texas, and New York are the top three states. Pennsylvania is eighth. Also revealing is that 176,259 positions were requested for certification and over 95% of those requests were certified. H1-B season picks up in full force over the next few months, as applications received on April 1 can be processed for October 1 starting dates (new fiscal year, when the cap of 65,000 + 20,000 starts fresh).

The Department of Labor is involved in the immigration and visitation of foreign workers for two important reasons. The first is to protect qualified American workers from losing jobs to foreign workers. The second is to ensure that the foreign workers are paid at the prevailing or actual wage, to guard against wage depression for American workers and protect foreign workers from being underpaid. The employer must make a prevailing wage determination and attest to paying the foreign worker at or above that wage in the labor condition agreement, which must be certified by the Department of Labor before the H-1B visa petition can be filed.

The post H-1B Visa 2015 Statistics appeared first on Wood Immigration Law.