Cadence Moore – Hammond Neal Moore, LLC

BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications

By Cadence Moore|2019-07-16T15:06:57+00:00July 16th, 2019|Categories: Green Cards|Tags: BALCA, Labor Certification|

In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered. This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.

0

Social Security Number No-Match Letters Return

By Cadence Moore|2019-05-23T11:56:57+00:00May 23rd, 2019|Categories: Government Agency Actions - USCIS, ICE, etc.|Tags: I-9, Social Security Administration|

This spring, the Social Security Administration (“SSA”) has begun sending “Employment Correction Request Notices,” or no-match letters, to all employers with at least one W-2 form in which an employee's name and Social Security number (“SSN”) does not match their records. Employers who receive such letters should not use the letters as reason to take adverse employment actions against their employees. In fact, such action may violate the anti-discrimination provision of the Immigration and Nationality Act, which prohibits discrimination on the basis of national origin, citizenship status or immigration status, document abuse during the employment eligibility verification process, and retaliation. Instead, employers should inform the employee of the no-match, verify the accuracy of their personnel records, and give the employee a reasonable time to contact the SSA office and correct the error. For a complete list of steps employers should take upon receiving a no-match letter and information on how to avoid no-match letters, please see this month’s copy of the HLG Advocate. If you have questions regarding this matter, please contact your HLG attorney or Rebecca M. Baibak, Esq. at rebecca.baibak@hammondlawgroup.com.

0

BALCA Clarifies How an Employer Can Satisfy its Obligation Regarding Possible On-the-Job Training

By Cadence Moore|2019-05-07T20:12:23+00:00May 7th, 2019|Categories: Green Cards, Green Cards|Tags: BALCA, recruitment|

The Board of Alien Labor Certification Appeals (“BALCA”) recently suggested how an employer may demonstrate that on-the-job training is necessary for a position. In Microsoft Corp, 2014-PER-00615 (February 25, 2019) the employer rejected an applicant after an interview, finding the applicant was not sufficiently familiar with Scripting, C++, HTML, and Window as required. The Board affirmed the denial and held that the employer had failed to adequately document that the applicant could not qualify after a reasonable period of on-the-job training. BALCA stated that “more than a bare assertion is needed to prove that it is infeasible to train new workers within a reasonable period of on-the-job training.” The court then explained that an employer may demonstrate that on-the-job training is required in the following ways: documentation from a vocational expert comparing the exact job requirements in the ETA Form 9089 to Applicant C.P.’s education, knowledge, experience, and skills; industry experts explaining the minimal requirements necessary to commence work in the position and why training in noted deficiencies is an not acceptable course of action; or an affidavit of the hiring official detailing the deficiencies noted with the basic job requirements and establishing a business necessity as to why the deficiencies cannot be corrected with any period of on-the-job training. While some experts argue that this case is overreaching, the case is nonetheless a reminder that employers should explain in detail why on-the-job training is required for a particular position when denying an applicant on this ground.

0

U.S. Embassy in Israel soon accepting E-2 Visa Applications

By Cadence Moore|2019-04-12T16:22:23+00:00April 12th, 2019|Categories: Visas - H-1b, L-1, E, O, TN|Tags: E-2, Non-immigrant|

The U.S. Embassy in Israel recently announced that a treaty investor agreement (E-2 Visa) has been signed between the United States and Israel. Beginning May 1, 2019, the U.S. Embassy in Israel will accept E-2 investor visa applications. The E-2 visa is a temporary (nonimmigrant) visa that can be used to develop, direct, or provide specialized skills to an enterprise in which the owner has invested a substantial amount of capital. This treaty agreement between the U.S. and Israel has been long anticipated. With the implementation of this E-2 visa, Israeli investors will have the opportunity to invest in the U.S. economy and send qualified employees to the U.S. Similarly, U.S. citizens will be able to apply for visas to invest in the Israeli economy.

0

BALCA Upholds Denial where Employer Failed to Interview a Potentially Qualifying U.S. Applicant

By Cadence Moore|2019-03-18T10:47:06+00:00March 18th, 2019|Categories: Green Cards|Tags: BALCA, recruitment|

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer should interview an applicant during the recruitment process in The Bank of Tokyo-Mitsubishi UFJ, LTD. In this case, the Employer filed an Application for Permanent Employment Certification (“ETA From 9089”) for the role of “Analyst/Systems Specialist-Systems Office for the Americas.” The case was audited and denied on the basis that the Employer unlawfully rejected a potentially qualified U.S. applicant without an interview. BALCA upheld the denial. First, the Employer required an Associate’s Degree “in any field” or 36 months of experience in “[r]elated tech exp w/systems analysis, design&dvlpt [sic], w/.NET, C#, C, C++, VBA.” Therefore, the fact that the Applicant did not list an Associate’s Degree on his or her resume was not an appropriate basis of disqualification. Second, the Applicant had more than 15 years of software development experience so it was reasonable to conclude that he may have 36 months of experience in the necessary skill sets. Notably, BALCA also rejected the Employer’s argument that the Applicant was not qualified because he had experience in “SQL programming language” and the Employer required technical development experience with “SQL Server (AF11).” BALCA explained that this did not matter because Section H of the ETA From 9089 did require experience with a particular type or version of SQL. This case is thus a sobering reminder that employers should error on the side of caution and interview (or inquire further regarding) possibly qualifying U.S. applicants.

0

First Update on the Number of H-1b Cap-Subject Petitions Received

By Cadence Moore|2012-04-06T15:10:33+00:00April 6th, 2012|Categories: Visas - H-1b, L-1, E, O, TN|

The California Service Center and the Vermont Service Center held a joint stakeholder engagement in Laguna Niguel, California on April 5th, 2012. At this event, USCIS announced that 22,323 cap-subject H-1b petitions were received by USCIS as of April 4th, 2012. Of this number, 25 percent were submitted as advanced degree cases. As many readers might remember, 20,000 H-1b visas are available for individuals qualifying with an advanced degree and 65,000 visas can be used for all other H-1b cases. The number of cases received towards the H-1b cap should alert employers who are still considering whether to file H-1b cap cases to take action. The amount of cases received in this initial period for FY 2013 is almost twice the number received last year at this time. Employers should expect that the H-1b cap will be exhausted on a much earlier date than what occurred in the last few years. As always, the Hammond Law Group is happy to answer any questions about the H-1b process.

0

H-1b cap filings Update

By Cadence Moore|2012-03-29T18:17:37+00:00March 29th, 2012|Categories: Visas - H-1b, L-1, E, O, TN|Tags: H-1b cap, H-1b lottery|

In 2008, 163,000 H-1b cap petitions were received by USCIS between April 1st and April 7th for fiscal year 2009. Since only 65,000 new H-1bs can be approved in any fiscal year, USCIS faced the problematic situation of determining which cases should be adjudicated and which should be returned. USCIS used a random selection process (also known as a lottery) to choose which cases to review and rejected any cases that were not selected. As a result of this predicament, the Department of Homeland Security issued new regulations. If more than 65,000 cap-subject H-1b petitions are received within the first five business days after the first date that cap subject petitions can be submitted, USCIS will conduct a random selection process to determine which cases will be considered. Those selected will be adjudicated. All other cases will be returned with their applicable fees. What this regulation means as a practical matter, is that a case received on Thurs April 5th, is treated the same as if it was received on Mon. April 2nd. While we do not expect the H-1b cap to be reached between April 2nd and April 6th for FY 2013, this information should be kept in mind as employers determine when they plan to file new cap-subject petitions.

0

Priority Dates in the EB-2 Category Expected to Retrogress in the May or June Visa Bulletin

By Cadence Moore|2012-03-19T15:18:39+00:00March 19th, 2012|Categories: Government Agency Actions - USCIS, ICE, etc., Green Cards|

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.

0

BALCA Issues Decision on Job Titles in Advertisements for Labor Certification Cases

By Cadence Moore|2012-02-28T22:24:01+00:00February 28th, 2012|Categories: Government Agency Actions - USCIS, ICE, etc., Immigration Compliance|

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.

0

New Report Compares H-1b workers to U.S. born employees

By Cadence Moore|2012-02-20T19:40:53+00:00February 20th, 2012|Categories: US Immigration Policy, Visas - H-1b, L-1, E, O, TN|

A recent report issued by the Institute for the Study of Labor in Bonn, Germany compared H-1b employees to native workers in regards to age, salary, and education level. This study, called H-1bs: How do they stack up to US Born Workers, noted that the H-1b visa system is often criticized for harming opportunities for native workers and allowing employers to take advantage of H-1b employees. However, the study found that H-1b workers on average are younger and more highly educated than U.S. born workers. In addition, they earn a salary that is comparable, if not higher, than the amount earned by native workers. To reach these conclusions, the authors obtained data on individuals from USCIS for 2000 to 2010 through a Freedom of Information Act request. This data was compared to the information provided about U.S. born workers in the American Community Survey: 2009. The report confirms that H-1b workers come to the United States with an advanced level of education, earn high incomes, and participate meaningfully in the U.S. workforce.

0

About Cadence Moore