The USCIS announced earlier this week that almost 275,000 registrations were submitted by U.S. employers for the 85,000 available lottery spots. This number was an increase of over 33% when compared to last years 201,000 filings. This increase is attributed to the new electronic registration process as well as the robust economy (remember that time only a few weeks ago). Of the 275,000 registrations 46% were for individuals with a US graduate degree. The period for filing completed petitions opened on April 1 and will end on July 1, 2020. For individuals that need to take advantage of the cap-gap rules, the full 90 day filing window is not applicable and those petitions must be filed prior to the expiration of the OPT EAD. Given the realities of COVID-19, and the number of lay-offs occurring, it is unlikely that all persons selected in the lottery will have petitions filed for them which will then open up the opportunity for those not originally selected to then be selected and possibly at a time when the economy is in a better state.
A Federal Court in DC has handed the USCIS a stinging defeat saying that its employer-employee definition and practice of issuing shortened approval notices is illegal. Congrats to attorney Jonathan Wasden for his fighting this battle. Read a copy of the decision here. If you have an H-1b petition that was illegally shortened by the USCIS, we may be able to obtain relief for you via this case. Please email me directly at firstname.lastname@example.org We will work with Mr. Wasden to have your case added to this litigation, if appropriate.
BALCA Clarifies How Employers May Use One Advertisement to Support Multiple Labor Certification Applications
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.
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.
Senior partner, Mike Hammond will be a speaker at the TechServe Alliance webinar discussing H-1b visas. The webinar will focus on issues facing IT and Engineering staffing/solutions firms.
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.
It has been long rumored that the current Administration would try and eliminate the STEM OPT program. It appears that they have now struck a major blow to its use by staffing and consulting companies. They did not issue a new policy memorandum nor did they publish a proposed change to the existing regulation but, they have changed the content on the USCIS web-site. A review of these changes makes it very clear that there is a prohibition on the placement of any OPT STEM worker at a 3rd party site. The new description specifically refers to the concept of a "training experience" and states: " Such entities [staffing companies] may not, however, assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. As noted above, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student." Given that this was announced via the USCIS web-site and did not go through any formal rulemaking means that it is very likely ultra vires and a prohibited interpretation but, unless an employer or other entity files a Federal lawsuit against the USCIS, individual examiners adjudicating I-765 applications based upon an I-983 with a staffing company as an employer are likely to follow this guidance. Further, it is expected that schools would not approve an I-983 with a staffing company as an employer. For individuals with an already approved EAD card working for a staffing company, we do not believe this change impacts you. It is most interesting that the web-page in question claims it was last updated in Jan of 2018 however, that is clearly not accurate. Whether the date was left in place in [...]
On March 23, 2018, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum adopting the Administrative Appeals Office (AAO) decision in Matter of S-Inc., which looked at the issue of multiple H-1B cap filings by “related entities.” In Matter of S-Inc., the AAO decided that the definition of related entities is not conclusive to those entities that are related by ownership and control. Rather, the AAO concluded that related entities include “those who submit multiple petitions for the same beneficiary for substantially the same job.” Moreover, the AAO decision explained that the following factors are pertinent in determining whether companies filing H-1B petitions are related: familial ties, proximity of location, leadership structures, employment history, similar work assignments, and substantially similar supporting documentation. In issuing their decision, the AAO looked at a case in which two distinct companies filed separate H-1B cap petitions to employ the same beneficiary in the substantively same job, as a Programmer Analyst, and would be performing comparable duties for the same end-client. The AAO concluded that since they were intending to employ the Beneficiary with the same end-client and the Beneficiary would be performing “essentially” the same duties, the companies were therefore related. AAO then looked at whether the two petitioners could demonstrate a legitimate business need to file more than one H-1B petition for the same beneficiary. The AAO clarified that to help determine a petitioner’s “legitimate business need,” they will examine the underlying job opportunity and each job opportunity must be “bona fide, be available to the beneficiary, and be materially distinct.” Therefore, USCIS will now start to deny or revoke the H-1B approval of cap-subject petitions filed by “related entities” for the same beneficiary absent a legitimate business need.
Fox News has finally jumped on board and published a guest opinion recognizing that President Trump's crackdown on LEGAL immigration is harmful to the U.S. best interests. It will be even bigger news if a Fox New columnist takes a similar stance. It will be interesting to see if anything can derail the Trump, Miller, et al war on legal immigration.
I have been fielding a lot of question recently regarding the current administrations intentions regarding H-1B extensions beyond the 6th year. In the face of the uproar and uncertainty that was caused when the current administration let it be known that this was possibly on the chopping block, it now appears to be out of the cross-hairs. Detailed article from McClatchy.com here. We will continue to monitor the situation but for now everyone can let out a collective sigh of relief.