On March 16, 2012, Charlie Oppenheim, Chief, Visa Control and Reporting at the Department of State, spoke at the American Immigration Lawyers Association’s Midwest Regional Conference in Chicago, IL. At this event, he noted that he will likely retrogress the dates for individuals in the EB-2 category who are from India and China to August 2007.  This will probably occur in the May or June 2012 visa bulletin. In addition, Mr. Oppenheim stated that he expected that all of the visas in the EB-1 category will be used in FY 2012. As a result, there will be no spill down to the EB-2 category. For those individuals who have a pending adjustment of status and a current priority date, their case will continue to be adjudicated by USCIS. If you have a current priority date and have not yet filed your adjustment of status, we suggest that  contact us as soon as possible about your case.

On February 27, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) determined that the job titles used in print advertisements for labor certification cases do not have to match the ones provided in the actual application if the occupational classification includes a broad range of job titles.  In Matter of Target Point Media, LLC, the employer filed a labor certification application for the position of Business Development Specialist.  As part of this application, it ran advertisements for a Business Development VP with two newspapers.  After conducting an audit, the CO determined that this change violated the regulations regarding print advertisements.  In its review, BALCA stated that there must be a “logical nexus’ between the advertisement and the position listed on the employer’s application.  Since this position was considered under the occupational classification of Market Research Analyst, which includes a “broad range of job titles,” the nexus was established.  Consequently, the job was “clearly open toU.S. workers” and the position was described “with sufficient specificity to apprise U.S. workers of the opportunity.”  BALCA reversed the CO’s denial.

Several HLG attorneys attended the DHS Ombudsman open forum on L-1b petitions.  At some point in the future, an official summary will be posted on the Ombudsman web-site. Until then, below are some items of interest. The DHS acknowledged that there has been a tremendous narrowing of the interpretation of the definition of “specialized knowledge” without any statutory or regulatory changes. The denial rates for L-1b petitions have now risen to 27% whereas, it had never exceeded 7%  prior to 2008. The rate of denials is much higher for IT petitions. The RFE rate has now reached over 66%. The DHS also acknowledged inconsistent treatment of petitions between the 2 service centers with the California Service Center having higher denial rates.  It was speculated that the standard being used by the service centers stems from a 2008 AAO case, GST which many scholarly experts have posited is possibly the most legally defective decision to ever be issued by an administrative law judge. The essential point of the GST opinion was that “if everyone is specialized, no one is specialized” Although, the merits of this policy remain without legal support, the reality is that this is the current policy being applied by the USCIS.   The Ombudsman office acknowledged that new training materials were provided to the USCIS in Oct of 2011 however, to date, the USCIS has refused to release those materials. The Ombudsman office re-affirmed that new L-1b guidance was being developed by USCIS headquarters however, no timetable was provided for the release of such guidance. Overall, it was an excellent session and it was heartening to have a DHS official listen and accept input from stakeholders. We applaud the efforts of the Ombudsman’s office and look forward to closer scrutiny of the USCIS service centers treatment of  L-1b petitions.

As part of President Obama’s public claims to foster legal immigration and encourage entrepreneurship, the DHS announced several planned reforms to achieve these goals without the need for  legislative action. We applaud the goals of the administration and these planned reforms and just hope that the culture of no which so permeates the agency at the service center levels are not able to quickly thwart the Preseident’s plans in much the same way that Senator Grassley and his cohorts in Congress would most assuredly stop these reform measures if Congressional action were required.

In several circles, the recent AG report which we discussed on Jan 4th and Jan 16th, has derisevely became known as the Grassley Report. In part, because Senator Grassley himself commissioned the report but, more importantly, and sadly, because it is a report that is so flawed in methodology, that if it were not a government product, it would be considered worthless. Senator Grassley is well known for his xenophobic policies and his stances that prevent legal immigration from flourishing but, that’s a political position, and although I may disagree with such a  position, I certainly support his right to hold and advocate for those positions. I presume that many of his constituents in Iowa share in those same beliefs. What is disheartening is that his political policies and his esteemed position as a US Senator have allowed him to manipulate various government agencies into creating policies and reports that start with the desired conclusion and then build upon half-truths, poor survey methodology, definitions devoid of any support in the law, and other tactics until, presto ! We have a damning report or memorandum that serves his political purposes. If only his talent at mudraking could be put to better use. For another opinion on this report, check out a recent post from the AILA leadership blog.

The CBP released a statement on its procedures for handling L petitions under NAFTA.  Our experience is that CBP officers have a far greater grasp of the L regulatory standards and far less of a political agenda  than their US Consulate brethren and that well-prepared L petitions are met with routine approval at the border.

As recently reported at www.thedaily.com,  the OIG released a report detailing that many rank and file USCIS examiners have faced pressure and even threats of job loss and demotion if they did not follow the policies and instructions of their supervisors including Director Mayorkas. The commentary suggested that those practices were horrible when, in fact, they should’ve been asking the question; “why should rank and file examiners think that their personal interpretations of the law be relevant ?” Rank and file examiners should follow the law, nothing more and nothing less.  The complaints of the “culture of no” which many immigration practitioners and employers believe is pervasisve at the USCIS Service Centers,  are derived from rank and file examiners who want to be policy makers and legislators instead of performing their jobs as tasked.   I applaud the pressure that USCIS HQ is putting on examiners and suggest that more is warranted.

In what has become a holiday tradition, a government agency has announced a fee increase. This time the DOS has published a new schedule for fees applicable to visa issued at Consular posts.  If only we could be assured that the Post would apply the law, paying increased fees would not be so bad but, alas, that is but wishful thinking on our part and as likely to happen as Santa coming down a chimney delivering presents !

Slowly but surely, the DOL has once again resumed isusing PWD’s submitted to support H-1b or PERM applications. The DOL is currently procesisng PWD requests received in late June. They have released data that shows a backlog of approx. 15,000 for the months of July and Aug.   The DOL has also advised that it plans to dedicate additional resources from its other product lines to deal with these backlogs. Although the curent procesisng time of approx. 90 days is 45-60 days longer than we had previously enjoyed, it is a far cry from the dire delays predicted by many in the bar.  Sometimes I get the impression that attorneys like to exaggerate things to create a crisis where none exists and in doing so, we often overlook a real crisis but, maybe that’s just me.

Recently the USCIS published a proposed regulation regarding its grand transformation plan.  The stated goal of the USCIS transformation is to go paperless and create a more customer friendly environment. Although I applaud these efforts at technological improvement,  the first step that USCIS should be taking toward becoming more customer friendly is convincing its examiners to follow the law that is in place and to stop acting like they are lording over a personal feifdom.  When USCIS examiners stop “making shit up” and create predictability for its customers, then moving forward with a better technology platform would be a nice plus.  To learn more about the USCIS Transformation, visit the USCIS site.