Immigration Visa Lawyer Blog

Due to the difficult economic conditions, the Department of Labor has hinted that it will implement supervised recruitment on more cases going forward. This, in essence, rolls back the clock five years on the progress made in streamlining the Labor Certification process under PERM. Currently, the PERM labor certification process is an audit based system. This means that the application under PERM is filed without supporting documentation and DOL either randomly or based on trigger system audits the applications for compliance.

While not all cases will be processed under supervised recruitment, larger percentage of cases will be subject to this process. Supervised recruitment is spelled out in 20 CFR 656.21. Pursuant to the regulations, it gives the Certifying Officer the choice of requesting a supervised recruitment process. The Certifying Officer is the person with the responsibility of issuing labor certification. The practical impact is a slower process. Under the supervised recruitment, there are additional steps to be undertaken, not required by PERM, and they are summarized below.

Continue reading "Labor Certification Supervised Recruitment is Coming your Way Soon" »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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Any Ohio labor certification attorney will tell you that prevailing wage determinations in Ohio have been consistently higher than other states for years. In a recent decision The Board of Alien Labor Certification Appeals (BALCA) in the matter of Reed Elsevier, Inc., 2008-PER-00201 agrees. The prevailing wage is the wage determined by the state agency to be paid to a foreign national if they are to obtain an employment based green card through labor certification. In reversing The Certifying Officer affirmation of a prevailing wage determination, the court stated that Ohio “drastically changes the character of the position, essentially increasing the yearly wage by over 25% and doubling the wage level at which the position would otherwise be classified.”

The court affirmed that Ohio has improperly upgraded the wage requirement to the highest possible level (level IV) by incorrectly combining experience and education in its analysis. In the case decided, , a level IV wage was assigned to an Engineering position because the employer required a Masters Degree plus one year of experience. BALCA’s ruling states that the proper wage level for this type of position with the aforementioned requirements should have been equivalent to a level II wage.

Continue reading "Ohio Labor Certification Prevailing Wage Level Improperly Doubled, Court Rules" »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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The June 2009 Visa Bulletin has just been released and once again many of the Employment Based preference categories continued to retrogress or have become unavailable. During the last several months we have seen a continued trend of this retrogression. For example, visa availability for the second preference category for Indian born applicants has moved back by five and a half years in less than a year. It moved from June 1, 2006, as published in the August 2008 Visa Bulletin, to January 1, 2000, as published in this June 2009 Visa Bulletin. Does this mean an Indian born applicant who will file a labor certification application in June of 2009, under the second preference category, will have to wait eight and a half years in order to receive a green card? Not exactly.

Keep in mind that there are no cases with a January 1, 2000 priority date because that day was a Saturday and one day after a federal holiday. Federal offices were not open to accept applications. So, based on the currently released Visa Bulletin, the second preference, Indian born applicant with a filed labor certification or immigrant visa petition in 1999 or earlier may file for an adjustment of status. Translation: No visas are available at this time as it is virtually impossible to find an unadjusted, decade old petition in this category. I believe the January 1, 2000 date referenced above was politically chosen. A priority date availability from the prior decade (which is only one day earlier) would be politically incorrect and would not be looked upon favorably. This is also consistent with the visa numbers for third preference categories across the board being released as unavailable for the second month in a row.

Continue reading "Labor Certification Attorney on Priority Date Retrogression. " »

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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There has been a recent spike in Requests for Evidence in adjustment cases questioning the intended work location of the foreign national and seeks confirmation of the permanent employment offer. The typical inquiry questions the intended place of permanent employment when USCIS observes, after reviewing the adjustment application, that the foreign national may be working in a different work location than the one listed in the approved labor certification.

It is important to note that, employer’s obligation to place the foreign national at the work location represented in the labor certification begins no earlier than the time the adjustment of status is approved. As such the employee/ foreign national may be located at other locations during the pending green card process. But the general rule regarding work locations is that if the intended place of employment changes, it renders the certified labor certification invalid, resulting in a denial of the adjustment of status. The exception is roving employees where the labor certification will be filed reflecting the employment location where the company headquarters is located, or in instances where the employee - foreign national is working for a different employer and is taking advantage of the American Competitiveness In The Twenty-First Century Act of 2000 (AC21) .

If the foreign national is working for a different employer and the adjustment of status has been pending for more than 180 days, then the work location may be anywhere in the US, so long as the AC21 guidelines are followed. Namely, the job is of the same or similar occupational classification. Note that the body of AC21 law interpretations and administrative memos addressing its applications and limitations is growing in complexity. As such, it is critical to consult with a competent immigration attorney before accepting a job offer from another employer to ascertain that the job change will preserve the pending green card application.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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Construction & Design Co. v. USCIS: The Seventh Circuit Court of Appeals on 04/21/2009 affirmed the denial of an Immigrant Visa Petition based on finding of lack of financial ability. It also criticized USCIS for not being able to distinguish between “accounting entities” and “cash flow.” Although this case is not a total victory for the arbitrary USCIS guidelines on determining financial ability in Labor Certification cases, it may be one of the early steps in a long road to change. The court explained that “because tax considerations drive a wedge between accounting income and economic income, a company’s tax returns are not a reliable basis for determining whether the company can afford to hire another employee. “

In this case the employer, a small company, sought to hire a foreign national that it has long used as an independent contractor. The difficulty the Plaintiff has run into in this case is that it did not explain why it will be paying the beneficiary twice as much salary as an employee as it is it is paying him as an independent contractor. Further the Plaintiff did not explain how it will be coming up with additional funds. The court went on to suggest that forms of acceptable explanations that are better than using Tax returns or a net asset calculations would have been that they have landed new contracts, or they have raised capital, or evidence that the new employee will generate additional revenues that covers his salary. Another possible explanation the court listed as acceptable is that the beneficiary would be working longer hours thus generating more revenue for the company as an employee.

The court explained that profitable companies might have no taxable income for various tax related consideration and it does not follow that they are unable to add or pay for an employee.

Posted by Sam Shihab Esq. | Permalink | Email This Post

Posted In: Labor Certification / PERM

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