How long should it take for the USCIS to process an I-485 application with a current priority date ? Certainly not 4 years, at least not without an explanation. As a result of a Federal mandamus action, a Federal judge ordered a USCIS representative to appear in Court and explain why a 485 case had taken 4 years and was still not adjudicated. The judge took particular umbrage with the USCIS written explanation which the judge stated was “no explanation at all”. Maybe we are finally seeing people willing to stand up to the abuses of the USCIS and take more matters to Federal Court where you will get an opportunity to be heard by a decision maker bound by the law, and not by the whims of this administration’s political policy or as it appears in this case, simple incompetency.
In Matter of Infosys Technologies Limited, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that considered whether an employer misled U.S. workers by stating in its recruitment that a position being sponsored for labor certification was located in San Francisco, CA with multiple long-term regional assignments when its ETA 9089 noted that the position was located in Fremont, CA. The Certifying Officer (“CO”) denied the labor certification on this basis. The employer argued that the CO’s reasoning for the denial ignored the fact that the position is roving. It also stated that Fremont was listed on the ETA 9089 because it is the location of its corporate headquarters and prior Department of Labor (“DOL”) guidance had provided that the corporate headquarters should be listed in the ETA 9089 when a position is roving. BALCA reviewed the advertisements and information from the DOL and found that “indicating that the position is located in San Francisco did not mislead any U.S. workers on the actual job location since the advertisement clearly stated that the position may require long term assignments within the region. Any U.S. worker would be on notice that the duties of the position may be performed anywhere within the San Francisco area, which would include the Fremont area.” Consequently, BALCA overturned the denial. This decision provides welcome guidance on the most appropriate way to recruit for roving positions in the labor certification process.
The Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that reminded employers that they must investigate the qualifications of any candidate that appears to be qualified for a position that is being sponsored through labor certification. In Matter of Select International, Inc., BALCA reviewed a case in which the employer filed a Permanent Employment Certification for the position of Industrial / Organizational Psychologist. The case was audited and selected for supervised recruitment. The Certifying Officer (“CO”) denied the application because it found that the employer rejected candidates for not meeting its minimum requirements for the position, even though the employer stated that it would “accept any suitable combination of education, training, or experience.” The position required a master’s degree in Industrial / Organizational Psychology and 36 months of experience in the job offered. The employer also stated that it would accept a master’s degree in a field directly related to Industrial / Organizational Psychology and 36 months of experience directly related to Industrial / Organizational Psychology. BALCA reminded the employer that it must consider candidates who are “capable of acquiring the [required skills] during a reasonable period of on-the-job training.” BALCA found that the employer failed to interview a candidate who had a broad range of experience, including experience in a position that was similar to the one offered by the employer. Since the employer stated that it would accept any suitable combination of education, training, or experience, BALCA found that it had a duty to investigate the qualifications of this Beneficiary further through an interview. Since it did not, the denial was upheld. This case serves as a reminder that employer’s must carefully review the resumes of applicants. If a candidate potentially has the necessary experience and education to perform in a role, the employer must offer an interview to that candidate to determine if he qualifies.
In what has become a common occurrence, a Federal judge has spared no feelings in decrying a decision taken by a USCIS agency. The latest was the Seventh Circuit Court of Appeals wherein the Court stated of the USCIS agency action, ”An agency must give reasons for abandoning a precedent. The citation of the case by the Board is incomprehensible, and the government’s argument is nonsense.” In a case last year, another Federal judge reviewed an H-1b denial from the California Service Center, and declared that the examiner’s reasoning and behavior “constitute[ed] a litany of incompetence that presents fundamental misreading of the record, relevant sources, and the point of the entire petition” and suggested that USCIS “should afford a bare minimum level of professionalism, diligence, and reasoning.” Ouch. In yet another Federal Circuit case, this one from the Ninth Circuit Court of Appeals, the Judge charged the USCIS with an improper understanding of the law and with unilaterally creating and imposing new standards of evidence not required by the law. All of these decisions demonstrate a common theme by the USCIS ignoring established law and precedent and creating its own standards to achieve its desired goal of a denial. When your mandate is to deny a certain percentage of cases due to misguided visions of national security, protection of the U.S. worker, prevention of outsourcing, dissatisfaction with the current law Congress passed or even simply illusions of grandeur, it is easy to justify ignoring the rule of law. In a pure Machiavellian sense, the end goals are all seemingly good, why not break the rules. Will a new Secretary of Homeland Security mandate that the Service Centers stop creating law and simply apply the law ? Probably not; the culture of no is so deeply imbedded in the USCIS that a personnel cleansing would be needed to change it. Can Federal Court decisions like the ones cited above affect change ? Maybe; if enough individuals and U.S. employers who suffer from clearly incorrect decisions take to the Federal Courts, the political pressure created may force change and if not, at least you will get the decision you deserve and under the EAJA, the government may even be required to pay your attorney fees.
The Department of State today released the September Visa Bulletin and it made a lot of people happy. For example, EB3 for all other countries and for China jumped 18 months, while India EB3 moved 9 months. Movement of this type has not been seen in EB3 since Lincoln was in the White House. The DOS indicated that this rapid forward movement was due to a lack of the expected demand however, they did predict that further forward movement over the next few months was unlikely.
Recently, The Field Adjudicators’ Manual was updated to clarify how reciprocity fees are affected when consular officers collect the Fraud Prevention and Detection fee and/or the Border Security Act fee. Blanket L-1 visa applicants are sometimes charged reciprocity fees (formally termed “visa issuance fees” by DOS) depending on their country of origin and whether the U.S. has entered into an agreement or treaty with the applicant’s home country. Reciprocity fees are not the only type of fees associated with Blanket L-1 visas. There are also Fraud Prevention and Detection fees and Border Security Act fees for some applicants.
It’s difficult to keep up with all the different ways USCIS can come up with to charge a fee for an L visa, but below is a break down:
- There is no base fee for the filing of a Blanket L-1 visa. The I-129S instructions specifically says “[t]here is no base fee for this form.”
- Fraud Prevention and Detection Fee. This fee is $500 for everyone who files under a blanket L petition. The fee is paid to the embassy or consulate if the application was filed there, or to DHS is the petition is filed with CBP.
- Border Security Act Fee. This $2,250 fee is for applications for workers whose petitioner employs 50 or more individuals in the U.S. if more than 50% of those employees are in H-1B or L nonimmigrant status.
- Reciprocity Fees. These fees are determined by country of origin and are wide-ranging. Many countries have no reciprocity fees for L-1 visas. Others pay in the $500 range.
The new clarifications were designed to explain how all of these fees interact. In short, people who have to pay either the Fraud Prevention and Detection fee or the Border Security Act fee (or both) will receive a “discount” in the amount of that fee on their reciprocity fee.
So, if an applicant is assessed a $1000 reciprocity fee, but is also assessed a $500 Fraud Prevention and Detection Fee, his reciprocity fee will be reduced to $500.
If an applicant is assessed a $1000 reciprocity fee, but is also assessed a $2,250 Border Security Act fee, the applicant’s reciprocity fee is reduced to $0.
Over the past several weeks, the DOL has been denying PERM cases for IT professionals which allow for engineering degrees as an educational requirement or alternative. This new policy has been widely reported by AILA attorneys and others. The explanation by the DOL is that an engineering degree is not the type of degree that would normally be acceptable for an IT position. For those of you who are currently holding IT positions and have an engineering degree, you must have just gotten lucky in getting your job. Once again, the DOL has demonstrated its uncanny ability to break from the practices of the real world. What is ironic is that the DOL currently has an open position for an IT professional and amazingly it specifically states that an engineering degree is an acceptable educational background. In only approximately 15 minutes, we were able to uncover no less than a half-dozen other Federal government agencies hiring IT professionals and stating that an engineering degree was an acceptable educational background. We are hopeful that DOL HQ will intervene and provide some additional training to its Certifying Office in Atlanta and correct this policy. In the interim, employers are being forced to file BALCA appeals to protect priority dates, insure the ability to extent H-1b’s beyond the 6 year limit, or avoid new costly recruitment campaigns. Even if this clearly erroneous policy position is quickly corrected, a significant amount of unnecessary cost will have been expended by employers and the delay created and the cloud of denial will have affected many foreign nationals.
The DOL recently released its performance report for the 3rdQ which provided data on PERM filings. Noteworthy is that denials are up over 50% from 1stQ.
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that stated that travel requirements for positions must be included in the advertisements that are placed as part of the labor certification process. In Matter of M-I L.L.C., BALCA considered a case in which the employer stated on its Form 9089 that the position would involve 35 to 40 percent international travel but did not include this requirement in the advertisements that were placed for the position. BALCA reviewed the PERM regulations and Department of Labor FAQ’s, which state that the advertisements must “indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” BALCA disagreed with the employer’s contention that the geographic area of employment was sufficiently identified in the advertisement by only listing the office location where work would primarily be performed from. BALCA noted that “[s]ince the ads only informed applicants about traveling to Houston [the office location] and not that 35 – 40% of the area of employment will be abroad, the ad failed to ‘apprise applicants of any travel requirements,” and did not “sufficiently indicate the geographic area of employment for the job opportunity.” Employers must carefully draft advertisements to reflect all travel requirements in a position. These and other issues involving roving employees will be further discussed at the Hammond Law Group’s upcoming seminar in New Jersey on August 23, 2013. Further information can be found here: http://www.hammondlawgroup.com/events/.
Last week, the USCIS provided a report to Congress on the characteristics of H-1b workers. 61% of petitions approved were for IT occupations, over 50% of H-1b’s were approved for persons with education beyond a bachelor’s degree, and the number of petitions denied increased dramatically in FY 2012; were among the many interesting facts provided in this report.