On May 11, 2012 the Department of Homeland Security announced an expanded list of STEM designated-degree programs that qualify eligible graduates for this extension. The list now includes fields such as pharmaceutical sciences, econometrics, quantitative economics, and more. A full list of STEM degrees is available here, with new additions in bold, and will be of interest to students, employers, and employees with eligible degrees who are currently in their first 12 months of OPT.

In World Agape Mission Church 2010-PER-01117 (March 23, 2012) the Certifying Officer (CO) had denied a labor certification application in part because the posting placed by the private employment firm failed to name the employer. BALCA overturned the denial. It noted that the requirements in 20 C.F.R. § 656.17(f), which included naming the employer, explicitly related only to newspapers or professional journals, and that the regulation regarding private employment firms did not contain this requirement. Although previous BALCA panels had held that other advertisements placed by an employer must comply with 20 C.F.R. § 656.17(f), this panel distinguished between those recruitment steps and the use of a private employment firm: It was not the normal practice of private employment firms to list an employer’s name. If they did that, potential employees could bypass them entirely.

Even so, BALCA noted, advertisements placed by private employment firms must comply with the employer’s duty to recruit in good faith and make the job opportunity clearly open to U.S. workers. The advertisement in this case contained the job title, the duties, the experience and education required, and a reference number that allowed the CO to match the listing to the employer’s labor market test. The employer had therefore demonstrated its use of a private employment firm, and had shown that the position was clearly open to U.S. workers, notwithstanding the omission of the employer’s name from the “private recruiting firm” recruitment step.

UPDATE: The Department of State has informed AILA that when the May Visa Bulletin is published, the China and India EB-2 cut-off dates will retrogress to August 15, 2007 and remain there for the remainder of fiscal year 2012. It was “too early” to predict movement for the remainder of the calendar year.

From AILA InfoNet Doc. No. 12032365 (posted Mar. 23, 2012).

The recent rapid progress of the cut-off dates for Indian and Chinese nationals in the EB-2 preference category will end soon, according to the Department of State’s Chief of Visa Control and Reporting, Charlie Oppenheim:

On March 16, 2012, at the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim… informed participants that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

From AILA InfoNet Doc. No. 12031639 (posted Mar. 16, 2012) (emphasis added).

Employers wishing to file labor certifications on behalf of their employees must follow strict recruiting guidelines set by the Department of Labor (DOL). One of the required recruitment steps is posting an online job order with the appropriate State Workforce Agency (SWA) for a period of 30 days. The regulation regarding how to record posting of the job order says “[t]he start and end dates of the job order entered on [Form ETA-9089] serve as documentation of this step.” See 20 C.F.R. § 656.17(e)(2)(i).

Prudent employers keep a copy of the job order on file, notwithstanding the plain text of the regulation, because the Certifying Officer (CO) regularly requests a copy during audits. In A Cut Above Ceramic Tile 2010-PER-00224 (Mar. 8, 2012) the employer provided something less than a copy of the job order itself, and the CO denied certification on the basis that the material did not prove that the job order ran, or what it contained. BALCA overturned the denial en banc, but Ceramic Tile will encourage prudent employers to continue their practice of keeping copies of all recruitment activity on file – even where doing so goes well beyond the employer’s legal obligations.

Ceramic Tile was set for en banc review to address a conflict between two prior panel decisions. One was Mandy Donuts 2009-PER-481 (Jan. 7, 2011). In Mandy Donuts the employer’s application was denied on similar facts to Ceramic Tile. The denial was overturned on the basis that the regulations require only that the start and end dates of the job order be entered on Form ETA-9089. The Board in Ceramic Tile agreed with this result for three reasons. First, since the regulations actually require copies of some recruitment steps (i.e. newspaper advertisements), it was difficult to imply such a requirement where one was not present. Second, and relatedly, the H-2B temporary nonagricultural labor certification program regulations did require a printout of the job order, suggesting that the CO had conflated the two sets of regulations. Finally, regulatory history supported a plain reading of §656.17(e)(2)(i).

The Board went on to hold that when a regulation does not require retention of a particular type of evidence to document compliance with a recruitment step, the CO may not deny certification based on a failure to produce it. The CO’s denial on this basis only in this instance was therefore improper, and the Board asked DOL to “revise the PERM regulations” if it wants to compel an employer to retain such documentation. However, the Board endorsed the CO’s authority to request documentation of the job order, and asked employers to submit it where available – noting that most employers acting in good faith would have retained such documentation in any event. The issue of good faith in carrying out this recruitment step has therefore been left open for future cases.

News Release from Jewell & Associates, PC – October 19, 2011

Employers placing advertisements for their labor certification applications must draft them carefully to ensure they comply with the PERM regulations. 20 CFR 656.17(f)(7) states that ads may not contain terms and conditions of employment that are “less favorable than those offered to the alien.” However, the Department of Labor has also said that employers have the option of placing “broadly written advertisements with few details regarding job duties and requirements” (PERM FAQs, March 3, 2005). Between these statements is a puzzle for employers: Which terms and conditions may be omitted if the ads are to remain compliant?

In Emma Willard School 2010-PER-01101 the Board of Alien Labor Certification Appeals handed down a decision whose result seems helpful for employers, but which ultimately fails to illuminate the little guidance available. The Certifying Officer had denied the employer’s application because of its failure to list the availability of subsidized housing in its recruitment. The Board, reversing the CO, pointed out that the regulations do not require ads to list the wage rate or other benefits, and that just because ads do not list that information does not mean that they contain terms or conditions less favorable than those offered to the alien. A reader, the Board said, “would not assume that the Employer is offering no wage at all simply because one isn’t listed, nor would he assume there are no other benefits, terms, or conditions. … There is no obligation for an employer to list every term or condition of employment and listing none does not create an automatic assumption that none exist.”

Employers may find this encouraging, but the decision actually contains little of use for those drafting their next round of recruitment advertisements. It is true that the regulations do not require ads to contain all of the terms and conditions of employment, so commonplace benefits such as healthcare and vacation days may be safely omitted. Indeed, as with the housing benefit in Emma Willard, their inclusion would make nonsense of the option of placing “broadly written” ads. On the other hand, the regulations do prohibit terms and conditions less favorable than those offered to the alien; hence the Board’s disclaimer that its opinion “should not be construed as support for an employer never having to offer or disclose a housing benefit.” So the question remains: Which terms and conditions can be omitted from, and which must be listed in, recruitment material? Without further direction, cautious employers should continue to list unusual or otherwise significant benefits.

In an unannounced but apparently official change in policy, U.S. Citizenship & Immigration Services (USCIS) is no longer sending the “original” version of important official documents to immigration lawyers representing petitioning companies and employees.  Instead, USCIS is mailing “original” approval notices (Forms I-797) directly to the petitioner or applicant, and sending only a “courtesy copy,” lacking critical data, to the lawyer.  Aside from the related logistical inconvenience, the original versions of approval notices are often the only evidence that an employee has of his or her legal status, and can be very difficult to replace.  Moreover, notices from USCIS may be time sensitive for a variety of reasons.  Therefore, large and small companies alike should coordinate with their mailroom to make sure that any mailings from the Department of Homeland Security (DHS) or the U.S. Citizenship & Immigration Services (USCIS) are routed immediately to the appropriate personnel, who can then alert immigration counsel and send the original or copies if needed. 

© Jewell & Associates, PC 2011

In a recent post we discussed the BALCA decision In the Matter of The University of Texas at Brownsville, 2010-PER-00887. The Board held that the Certifying Officer was wrong to deny the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. The Certifying Officer, in support of his argument, had referred to an answer to an FAQ by the Office of Foreign Labor Certification (OFLC), which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.” The Board disagreed and reaffirmed its position that agencies may not impose substantive rules that have the force of law through answers to “frequently asked questions.”

We thought it sensible that employers and practitioners treat Brownsville with caution until the Department of Labor, through the OFLC, revealed its intent towards the offending FAQ answer. The FAQ and answer have now been revised and can be found at the FAQ web page (and AILA InfoNet, doc. 11090164). The answer is now “yes”: “an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers.” It then lists three conditions:

• The journal’s job listings must be viewable to the public without payment of subscription and/or membership charges. UPDATE: This condition was removed from the FAQ on September 28, 2011.
• The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal’s website.
• Documentation of the placement of an advertisement in such a journal must include its text and evidence of its start and end dates.

© Jewell & Associates, PC 2011

The U.S. Department of State’s instructions for the 2013 Diversity Immigrant Visa Program (DV-2013) are now available. Entries for the DV-2013 program must be submitted electronically between October 4, 2011 and November 5, 2011. Changes in eligibility this year: For DV-2013, natives of South Sudan and Poland are now eligible for selection, while Bangladesh natives are now ineligible. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site, http://tinyurl.com/3wa75.

The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2013, 50,000 diversity visas will be available.

© Jewell & Associates, PC 2011

In General Electric Company (GE Energy) 2010-PER-763 the employer’s Application for Permanent Labor Certification was accepted for filing by the Department of Labor on October 26, 2009. The employer had posted the job order on April 27—182 days before the filing date—and removed it on May 27. The Certifying Officer (CO) denied the application because the job order was placed more than 180 days before the application was filed, and the job order “must be conducted at least 30 days, but no more than 180 days, before the filing of the application” (20 CFR § 656.17(e)(1)(i)).

The Board vacated the CO’s decision and returned the application for certification. The Board held that an employer must file its LC application “at least 30 days, but no more than 180 days, after the end date of its SWA job order, not the start date.” The LC had therefore been filed on time, since the latest date on which the LC could be filed was November 23.

The Board’s reasoning is scant. It refers to the regulations, and Ameyovi Oyassan 2007-PER-68, but neither seems to support its reasoning, and they are not discussed. In Oyassan the employer listed the job order start date as June 12 and its end date as August 12. It then filed its LC on July 19. The Board held that the job order had to have been completed at least 30 days, but no more than 180 days, before filing, and added: “[T]he employer believed that it could file the application 30 days after the SWA job order started. However, the applicable time is 30 days after the SWA job order ended.”

The GE Energy Board seems to have relied on this to support its interpretation of “conducted” in the regulation as meaning “ended” rather than “completed in its entirety.” The latter, proper interpretation was clear as recently as Blue Mountain Stone, Inc. 2010-PER-00488 where the employer filed its LC 206 days after the job order began, and 176 days after it ended. The panel of judges in Blue Mountain affirmed the CO’s denial, noting that the employer misunderstood the meaning of “conducted,” which has two interpretations depending on whether it relates to 30 or 180 days. When it relates to 30 days, it means that “the SWA job order must have ended at least 30 days prior to the filing” because it ensures that the employer has the time to receive resumes, contact applicants, and make final hiring decisions. When it relates to 180 days, it means that “the job order must begin no more than 180 days prior to the filing,” since the job order becomes stale if too much time passes between its placement and the filing of the application.

Indeed, the problem with the GE Energy approach of using the end date of the job order as a marker is shown by substituting different facts. Imagine that an employer makes the job order one of its last recruitment steps, so that it is removed 120 days after the first print advertisement is run. According to a strict interpretation of GE Energy, the LC can be filed 180 days after the job order is removed, so our employer, relying on the decision, files the LC 180 days after the job order is taken down. The LC filing date is now 300 days after the first mandatory recruitment step. This LC would be properly denied by the CO as contrary to §656.17(e)(1)(i), and no Board would overturn the decision. This absurd result, and prior BALCA decisions, indicate that GE Energy is problematic and should not be relied on in practice.

© Jewell & Associates, PC 2011