The Department of State has released the April 2015 visa bulletin. Notably, EB-3 Rest-of-World has moved up to October 1, 2014.
As of today, the Department of Labor's Atlanta National Processing Center (ANPC) will be changing its procedure regarding requests for reconsideration of denied PERM Labor Certifications. Beginning on October 27, 2014, the ANPC will no longer automatically forward Requests for Reconsideration to the Board of Alien Labor Certification Appeals (BALCA) where the Certifying Officer upholds the original denial of the PERM. Requests for BALCA review must now be made affirmatively no later than 30 days after the request for reconsideration before the Certifying Officer is denied. See the DOL's FAQs for additional information.
On August 28, 2014, the Board of Alien Labor Certification Appeals (BALCA) issued a decision finding that an employer's name must be explicitly stated on the Notice of Filing that must be posted at the workplace where the Beneficiary of the Labor Certification will work. In Matter of Tera Technologies, Inc., the employer had used the phrase "Our Company" on its notice of filing. The Department of Labor's Certifying Officer found that this did not meet the regulatory requirement that the employer explicitly state its name on the Notice of Filing. Although the employer argued that all employees who saw the Notice would know that it was for their company because the phrase "our company" was used and the employees knew the contact person listed on the Notice, BALCA held that the Certifying Officer was correct in denying certification.
At the annual conference of the American Immigration Lawyers Association (AILA) in June, the U.S. Department of Labor released statistics about the Labor Certification applications in process and Labor Condition Applications filed in preparation for submitting H-1B petitions. Interesting points include:
The Office of Foreign Labor Certification released its latest statistics regarding the Permanent Labor Certification (commonly called "PERM" or "Labor Certification") Program for the Fiscal Year 2014. So far, the Department of Labor (DOL) has received 53,325 applications, a 15% increase from last year. Of the 53,325 applications received, 47,257 have been certified, 3,618 denied, and 2,981 withdrawn. Among the certified applications, the top 5 occupation categories were Computer and Mathematical (56%), Architecture and Engineering (12%), Management (8%), Business and Financial Operations (7%), and Education, Training, and Library (5%); the top 5 work site States are California (24%), Texas (10%), New York (8%), New Jersey (7%), and Washington (7%); and the top 5 countries of citizenship are India (56%), China (7%), Canada (5%), South Korea (5%), and Philippines (3%). The vast majority of Beneficiaries of certified Labor Certifications are in H-1B status (83%), with L-1s coming in second at 5%. Finally, it is worth noting that 55% of the certified PERM applications required an Advanced Degree and 38% required a Bachelor’s degree. Only 2% of these applications required less than a Bachelor’s degree. Click here for the full report.
On January 30, 2014, the Board of Alien Labor Certification Appeals (BALCA) reversed the denial of a Labor Certification submitted by the Clariden School for the position of “AMI Montessori Elementary Teacher.” The certification was initially denied because the school indicated on the ETA Form 9089 that the minimum educational requirement for the position was a Bachelor’s degree. The school reported that the highest level of education achieved by the foreign worker was “AMI Certification.” Although the school submitted a document from the Montessori Training Center of Minnesota stating that a Bachelor’s degree is required for admission to its AMI Montessori Diploma program, the U.S. Department of Labor (DOL) contended that the school’s representation on Form 9089 did not enable DOL to verify that the foreign worker earned a Bachelor’s degree, and should have used the free form space on the Form to disclose that the foreign worker possessed a Bachelor’s degree on top of AMI Certification.
Since June 2013, EB-3 China has been ahead of EB-2 China. This trend will continue during the month of March.
In Patel v. USCIS, the Sixth Circuit Court of Appeals held that the Beneficiary of an I-140 (Employment-Based) visa petition had standing to sue under the Administrative Procedures Act. This decision is particularly interesting because the Petitioning Employer who filed the I-140 petition failed to obtain a labor certification for the Beneficiary before filing the I-140, which is a requirement for filing the I-140. Instead, the Petitioner included a Labor Certification obtained by a different employer for the Beneficiary several years ago with the I-140 petition. The Court appears to believe that the I-140 was approvable as filed and that USCIS was arbitrary and capricious in denying the I-140. It will be interesting to see what happens in this case!
In Matter of Chabad Lubavitch Center (2011-PER-02614), the Board of Alien Labor Certifications (BALCA) held that requirements for the content of newspaper ads placed as part of the recruitment process for PERM Labor Certifications are applicable to State Workforce Agency (SWA) Job Orders. A PERM denial was overturned where the Job Order did not state the exact same requirements as the newspaper ads placed for the recruitment.