On May 28, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of VB Hospitality LLC that reiterated that the Department of Labor (“DOL”) is not entitled to a presumption that its mail is delivered. This case involves a labor certification that was filed for the position of maid. The case was selected for audit on April 28, 2011 and a deadline of May 30, 2011 was set for the employer’s response. The case was denied on June 9, 2011 because the Certifying Officer (“CO”) found that the employer had not responded to the audit. The employer submitted a request for redetermination to the DOL and included attestations from the employer’s attorney’s General Manager stating that an audit response was not received and evidence that the employer’s attorney had timely responded to earlier requests from the DOL about this case. BALCA reviewed prior case law and found that “the CO is not entitled to a presumption of delivery of mail sent by the National Processing Center in the absence of proof of its internal mailing procedures.” The case was vacated and returned to the CO for further processing. While this case does provide support for employers who do not receive correspondence from the DOL, employers should remain cognizant of the importance of checking all mail for any requests from a government agency.

The Department of State released the July Visa Bulletin and it contains good news for India EB2 but, it is a bit hidden.  At first glance, the July Bulletin is more of the same; a four (4) month movement for the EB3 all other country category, snail like movement of mere weeks for India EB3 and Philippines EB3 and no forward movement for India EB2. But, on page 6, the DOS looks into their crystal ball and makes predictions for the upcoming months and predicts forward movement that will generate “heavy new applicant demand” in August and September.  We look forward to it.

On April 11, 2013, representatives from the American Immigration Lawyers Association (“AILA”) and the Department of Labor (“DOL”) met to discuss the Office of Foreign Labor Certification (“OFLC”). In this meeting, AILA questioned whether the DOL employee furloughs that are expected to occur as a result of sequestration will affect the processing of labor certifications at the OFLC. The DOL stated that it has plans in place to ensure that it meets its regulatory and statutory requirements. It is currently within its processing time goals and is developing further plans to maintain these processing goals when sequestration occurs. Based on these comments, we remain hopeful that sequestration will not impact the processing of labor certification cases.

The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed the information that must be included in notice of filings. In Matter of MT Heating, Inc., BALCA considered whether a case could be denied on the basis that the notice of filing did not include the posting location. In this case, the employer submitted a labor certification for the position of “Traditional Heating & AC Systems Installer.” The case was audited and the employer submitted the requested information. The Certifying Officer (“CO”) denied the case on the basis that the notice of filing did not indicate the location where it was posted. The regulations under 20 C.F.R. § 656.10(d)(1)(ii) state that the an employer can demonstrate that it properly posted the notice of filing by “providing a copy of the posted notice and stating where it was posted.” In reviewing this case, BALCA noted that the content of the notice of filing was fine. However, it stated that the employer did not provide any information demonstrating that the notice of filing was posted in a proper location. BALCA noted that “it is not administratively feasible for the CO to investigate the circumstances of each applicant’s business,” and denied the case on the basis that the employer failed to establish the location that the notice of filing was posted as required by the regulations. BALCA did state that “there may be other ways to satisfy the requirements besides stating where the notice of filing was posted,” but observed that the employer in this case did not present any evidence that it had fulfilled this requirement in other ways. This case stands for the proposition that notice of filings must be carefully drafted to ensure that they meet the requirements as specified by the Department of Labor.

The Department of State (DOS) has released the June Visa Bulletin and just like last month, there were huge gains for EB3 for the “All other countries” category, Mexico, and China.  For people born in those countries,  the priority dates jumped 9 months forward to Sept 1, 2008.  There remained little to no movement for persons from India or the Philippines. The DOS also announced that similar forward movement in future months for EB3 is not likely. The need for retrogression relief from Congress remains critical.

Earlier this week, the DOS released its report which shows the Annual Numerical Limits for FY 2013 that it will utilize in the allocation of immigrant visas.

The Board of Alien Labor Certification Appeals (“BALCA”) issued a decision on April 12, 2013 that discussed recruitment activities that involve multiple positions. In Matter of Microsoft Corporation, BALCA reviewed a case that was filed for the position of “Support Engineer” and that listed a requirement on the ETA 9089 of a Bachelor’s degree.  The case was audited and the employer submitted a notice of filing that stated that the position “requires a BA / BS or MA / MS degree or equivalent,” and that “Team Manager positions are available.” The employer also provided a copy of the job order that the employer placed with the Washington State Workforce Agency that stated that “qualifications may include a MA / MS or equivalent or BA / BS degree or equivalent . . . multiple positions available.” The Certifying Officer (“CO”) denied the case on the basis that the ETA 9089 did not state that a master’s degree was necessary, but the notice of filing and job order both listed this degree as a requirement. BALCA reviewed an earlier decision from February 29, 2012 (also titled Matter of Microsoft Corporation) which discussed multiple position advertisements. In this previous case, BALCA found that when a multiple position advertisement lists requirements in the plural and alternative, the reader would understand that not all requirements applied to every position. Similarly, in this case, BALCA found that the notice of filing and job order “make clear that several . . . positions are available.” Furthermore, the degree requirements are listed as alternatives and the recruitment listed Team Manager as an available position. Consequently, BALCA found that the reader would understand that “there are multiple Support Engineer positions open that apply to various stages in the technical support process depending on the applicant’s level of education.” We applaud BALCA for remaining consistent with its earlier decision and providing welcome guidance on multiple position recruitment efforts.

On March 19, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that established that employers that are conducting recruitment for labor certification cases should consider the circulation numbers of the newspaper as a more critical factor than the address of the newspaper. In Matter of Wal-Mart Stores, Inc., the employer sponsored a candidate for labor certification for a position in Bentonville, AR. As part of its recruitment, the employer ran two Sunday advertisements in the Arkansas Democrat Gazette, which is located in Little Rock. AR and is over 200 miles away from Bentonville. The Certifying Officer denied the case on the basis that this newspaper is not located Bentonville and could not be considered a “newspaper of general circulation in the area of intended employment most likely to bring responses from available U.S. workers.” as required by the federal regulations. The employer submitted a substantial amount of evidence, including information from a number of organizations that confirmed that the Arkansas Democrat Gazette had the highest circulation of all newspapers in Bentonville, and argued that circulation numbers were the relevant factor in determining an appropriate newspaper to use as a form of recruitment. BALCA agreed with this position and stated that the regulations do not “state that the newspaper used in support of a PERM application has to have a business address within commuting distance of the area of intended employment.” It found that the circulation numbers of the Arkansas Democrat Gazette demonstrated that this newspaper was the most likely to “bring responses from able, willing, qualified, and available U.S. workers.” This decision provides important guidance to employers who are sponsoring positions located in smaller towns where a large local newspaper may not be available and confirms that circulation numbers should be the most relevant factor.

The American Immigration Lawyers Association (AILA) today released an outline of the Senate CIR proposal. The actual text of the bill has not yet been released but, is expected to be released this week. The outline shows significant changes to the employment based permanent residency system including  measures that will help to reduce retrogression. The proposal also includes significant restrictions on employers deemed to be dependent upon H-1b workers and also added a labor market test to all H-1b filings. After the text of the bill is released, we will provide a summary.

The DOS has released the May Visa Bulletin and there was significnat movement for everyone not born in India, Mexico, or the Philippines.  The EB3 category jumped ahead 7 months for those born in China and 4 months for those in the all other chargeability areas.