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Archive for March, 2008

Naturalization Interview Times Now Include Weekends and After Business Hours

March 23rd, 2008 3 comments

USCIS is expanding work hours and increasing staff to help process the record number of naturalization applications filed in Fiscal Year 2007. More resources should be welcomed. But the less obvious secondary benefit – some applicants might not have to miss a day of work for their appointments.

From USCIS,

In Fiscal Year 2007, USCIS received a significant increase in naturalization applications (Form N-400). To address the increase, USCIS is expanding work hours and adding staff to complete these filings within our processing time goals.

If you have received a notice from USCIS that your naturalization interview has been scheduled on a Saturday, Sunday, or after traditional business hours, the notice is correct and you should appear at the scheduled time.

Immigration lawyers are happy because the additional resources should help USCIS process clients’ applications faster. Immigration lawyers are not happy because they now have 7-day work schedules.

On a related note, a New York Times Editorial bashed USCIS soon-to-be-ex-Director Gonzalez in a story about the processing delays. Director Gonzalez published a direct response on the Leadership Journal, a blog published by the Department of Homeland Security. Whether you prefer the NYT or USCIS version of the story, give Director Gonzalez credit for addressing the issue so directly.

H-1B Cap Rules Change at the Last Minute

March 21st, 2008 2 comments

It’s not the substance of these H-1B Cap rule changes that bothers me, it’s the timing. With only days remaining before the H-1B Cap opens, USCIS issued an interim rule (1) prohibiting most multiple H-1B filings, (2) extending the application deadline to a 5-day minimum, and (3) allowing adjudicators to deny petitions claiming to be exempt from the Cap when they are not.

“Interim Final Rule on Duplicate H-1B Petitions” [full pdf]

Jump to summary:

  1. A. Final Receipt Date When Cap Numbers Are Used Up Quickly ↓
  2. B. Elimination of Multiple Filings ↓
  3. C. Denial of Petitions After Cap Numbers Are Used ↓

 

A. Final Receipt Date When Cap Numbers Are Used Up Quickly.
This rule provides that USCIS will include petitions filed on all of those first five business days in the random selection process if USCIS receives a sufficient number of petitions to reach the applicable numerical limit (including limits on exemptions) on any one of the five business days on which USCIS may accept petitions. This will eliminate filing problems resulting from a rush of filings made on the first day on which employers may file petitions for the upcoming fiscal year. See revised 8 CFR 214.2(h)(8)(ii)(B). USCIS has determined that a filing period of five business days is sufficient to account for a wider range of mail delivery times offered by the various mail delivery providers available to the public.

This rule also provides that, if both the 65,000 and 20,000 caps are reached within the first five business days available for filing H-1B petitions for a given fiscal year, USCIS must first conduct the random selection process for petitions subject to the 20,000 cap on master’s degree exemptions before it may begin the random selection process of petitions to be counted towards the 65,000 cap. See revised 8 CFR 214.2(h)(8)(ii)(B). After conducting the random selection for petitions subject to the 20,000 cap, USCIS then must add any non-selected petitions to the pool of petitions subject to the 65,000 cap and conduct the random selection process for this combined group of petitions. Therefore, those petitions that otherwise would be eligible for the master’s degree exemption that are not selected in the first random selection will have another opportunity to be selected for an H-1B number in the second random selection process. This rule also clarifies that those petitions not selected in either random selection will be rejected. See id.

 

B. Elimination of Multiple Filings.
To ensure the fair and equitable distribution of cap numbers, this rule precludes a petitioner (or its authorized representative) from filing, during the course of any fiscal year, more than one H-1B petition on behalf of the same alien beneficiary if such alien is subject to the 65,000 cap or qualifies for the master’s degree exemption. See new 8 CFR 214.2(h)(2)(i)(G). This preclusion applies even if the petitions are not duplicative.

USCIS recognizes that, by statute, multiple filings of H-1B petitions are contemplated. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7). Nevertheless, USCIS finds that this rule’s preclusion of duplicative H-1B filings is consistent with the statute. Section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), states that “[w]here multiple petitions are approved for 1 alien, that alien shall be counted only once.” USCIS interprets this statutory language as applying to an alien who has multiple petitions filed on his or her behalf by more than one employer. Therefore, an alien who will be performing H-1B duties on behalf of two separate petitioners will be counted only once against the cap. USCIS does not believe that the statutory language at section 214(g)(7) of the INA, 8 U.S.C. 1184(g)(7), was intended to allow a single employer to file multiple H-1B petitions on behalf of the same alien. Such a broad interpretation would undermine the purpose of the H-1B numerical cap since multiple filings can result in the misallocation of the total available cap numbers.

USCIS recognizes that, on occasion, an employer may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien. This rule precludes this practice if the alien beneficiary is subject to the numerical limitations or qualifies for the master’s degree exemption. First, allowing multiple filings by one employer on behalf of the same alien could create a loophole for employers that seek to exploit the random selection process to the competitive disadvantage of other petitioners. Such employers could file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the employment positions are in fact the same or only very slightly different.

Second, requiring USCIS adjudicators to distinguish between multiple petitions filed by one employer for one alien based on different job offers and duplicative petitions for one alien for the same, single position would require a significant expenditure of limited USCIS adjudicative resources. USCIS could not make such determinations on the face of the petition, but would need to substantively examine and compare the merits of the petition and any other petition filed by the same employer on behalf of the alien. This would defeat the purpose of the random selection process, which is not intended to be a decision on the merits, but instead, an expeditious way for USCIS to determine which petitions are eligible for consideration on the merits.

Finally, prohibiting employers from filing multiple petitions on behalf of the same alien should have no impact on the unusual situation where an employer may have the same alien in mind for materially distinct employment positions. Once an alien is allocated an H-1B number based on one petition, the employer is able to file an amended petition or a petition for concurrent employment to reflect the different nature of the duties that are associated with the beneficiary’s second employment position. Since the alien would have already been counted against the cap, such amended or additional petition would not be affected by the prohibition on multiple petition filings. See INA sec. 214(g)(7), 8 U.S.C. 1184(g)(7).

For these reasons, USCIS believes that it must curtail both duplicative and multiple petition filings by the same employer in order to prevent future fairness problems similar to those USCIS experienced with its administration of the FY 2008 random selection process for the 65,000 cap. Accordingly, this rule provides that USCIS will deny all the petitions filed by an employer (or authorized representative) for the same fiscal year with respect to the same alien subject to the 65,000 or 20,000 caps. See new 8 CFR 214.2(h)(2)(i)(G). In cases where USCIS does not discover that duplicative or multiple petitions were filed until after approving them, this rule also provides that USCIS may revoke all such petitions if they were approved after this rule becomes effective. Id.

This rule does not, however, preclude related employers from filing petitions on behalf of the same alien. USCIS recognizes that an employer and one or more related entities (such as a parent, subsidiary or affiliate) may extend the same alien two or more job offers for distinct positions and therefore have a legitimate business need to file two or more separate H-1B petitions on behalf of the same alien.

For example, a Fortune 500 company may be the parent company of numerous U.S.-based subsidiaries whose business is to engage in either the food, beverage or snack industries. Each line of business may, in turn, be divided into several business units and operate distinct companies (restaurant, bottled beverage plant, cereal manufacturer, etc) with different EIN numbers, addresses, etc. Although all the subsidiaries are ultimately related to the parent company through corporate ownership, this rule does not prohibit different subsidiaries from filing one H-1B petition each on behalf of the same alien so long as each employer/subsidiary has a legitimate business need to hire such alien for a position within that subsidiaries’ corporate structure. Thus, in this example, if the bottled beverage plant owned by the Fortune 500 company and the cereal manufacturing company owned by the same Fortune 500 company are each in need of the services of a Chief Financial Officer, both may file one petition each on behalf of the same alien. A subsidiary should not file an H-1B petition for an alien just to increase the alien’s chances of being selected for an H-1B number where that subsidiary has no legitimate need to employ the alien and is, instead, only filing a petition to facilitate the alien’s hiring by a different, although related, subsidiary.

USCIS may issue a request for additional evidence or notice of intent to deny, or notice of intent to revoke for any or each petition if it determines that the employer and related entity(ies) filed a duplicate petition as defined in this regulation. See 8 CFR parts 103 and 214.2(h)(11). The burden rests with the employer to establish that it has alegitimate business need to file more than one H-1B petition on behalf of the same alien. If the employer does not meet its burden, USCIS may deny or revoke each petition, as appropriate. Without such authority, a loophole would exist for related employers to file multiple petitions on behalf of the same alien under the guise that the petitions are based on different job offers, when the true purpose of filing the petitions is to secure employment for the alien with a single employer seeking his or her services. As an example, one target of this provision is the unscrupulous employer that establishes or uses shell subsidiaries or affiliates to file additional petitions on behalf of the same alien in order to increase the alien’s chances of being allotted an H-1B number. USCIS believes that these consequences are warranted in order to deter unfair filing practices and further ensure the integrity of the H-1B cap counting process.

To date, USCIS has identified the problems resulting from multiple filings only in the context of H-1B petitions. For this reason, this rule limits the bar on multiple petition filings to H-1B petitions.

 

C. Denial of Petitions After Cap Numbers Are Used.
Over the past few years, USCIS has received a significant number of petitions that claim to be exempt from the 65,000 cap, but are determined after the final receipt date or after all cap numbers have been used to be subject to the cap. The current regulations do not specifically address treatment of such petitions. This rule amends the regulations to clarify that such petitions will be denied rather than rejected. See revised 8 CFR 214.2(h)(8)(ii)(B) and (D). USCIS has determined that denial of these petitions is appropriate because USCIS must adjudicate them in order to make a determination on whether the alien beneficiary is subject to the numerical cap. USCIS only rejects filings before an adjudication takes place. See 8 CFR 103.2(a)(7). Because USCIS must adjudicate these petitions, it will not return the petition and refund the filing fee.
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Categories: H-1B Tags:

H-1B Cap Filing Tip // Predating the LCA

March 18th, 2008 2 comments

The H-1B Cap opens April 1st and this post is a last minute reminder about predating the Labor Condition Application (“LCA”) for the H-1B petition.

More experienced immigration lawyers and most savvy employers are familiar enough with LCA predating. The American Immigration Lawyers Association (“AILA”) recently published some H-1B filing tips (member access only), and LCA predating was included. But I am going to write a longer summary here because it might be useful to immigration lawyers, employers with H-1B filings, or the prospective H-1B employees themselves.

What is the LCA?

For every H-1B petition, the employer, most times through its attorney, files a labor condition application or “LCA” with the Department of Labor, to certify that the offered wage is appropriate for the position, i.e. the employer is not offering the job to a foreign worker at a lower wage than US workers are paid for comparable jobs in that area.

The filing and approval of the LCA is a requirement that must be met before filing the H-1B petition with USCIS. Through the LCA, sponsoring employers agree to several undertakings, enforceable by heavy civil and criminal penalties: Specifically, the employer agrees:

  • To pay the H1B worker at least the higher of the wage paid to similar workers in the same company or the “prevailing wage” for the occupation in the area the worker will be employed;
  • That the recruitment of the H1B worker(s) will not adversely affect the conditions of the employer’s US-resident employees in similar jobs;
  • That there is no strike or lockout occurring at the time the Labor Condition Application is submitted, and that the approved LCA will not be used to support petitions for H-1B workers to be employed at the site of any subsequent strike or lockout;
  • That a copy of the LCA form will be given to the H1B worker and either given to the bargaining representative of employees in similar occupations or (if there is no bargaining representative) posted in 2 conspicuous locations for at least 10 days in the place the H-1B beneficiary will be working;
  • To maintain records of the LCA and the H1B worker’s employment for inspection by the US Department of Labor.

LCA Timing Issues

The LCA cannot be submitted to the Department of Labor earlier than six months prior to the start date of the period of intended employment (see 20 CFR § 655.730(b)). For most H-1B petitions being filed April 1st, the intended start-date will be October 1, 2008 – the first day of Fiscal Year 2009. So the earliest an LCA could be filed would be April 1st (6 months prior to start-date of October 1st ). But the LCA must be filed before April 1st because a certified LCA (or copy) must be included with the actual H-1B petition, and the H-1B petition should be received by April 1st in order to beat the Cap.

In an ideal world, an H-1B petition would be filed with a start date of October 1, 2008, and an end-date of September 30, 2011. These dates reflect the three-year maximum validity for each approved H-1B petition. And the LCA must cover the full three years.

This is not possible, though, because of timing issues with the H-1B cap. As covered above, the H-1B petition must be received by USCIS, with a certified LCA, on April 1st. Yet the LCA cannot be filed before April 1st if it is to cover the full three years of the H-1B petition from October 1, 2008 through September 30, 2011. It’s a real catch-22.

So, what to do?

The solution is to predate the LCA with a start date earlier than October 1, 2008, and then file the H-1B petition (Form I-129) with a start date of October 1, 2008, but with an expiration date that matches up with the end date of the LCA. For example, if we were to file an LCA today, we could set the start date of LCA for September 18, 2008 and an end date of September 17, 2011. Then we could file the H-1B petition April 1st and request a start date of October 1, 2008, and an expiration date of September 17, 2011 (to match the LCA end-date).

The only drawback to this method is that the H-1B petition will be approved for less than the three-year maximum. But it is worth sacrificing a week, or even a month, of eligibility to make it possible for the petition to be accepted under the Cap.

If USCIS publishes any more H-1B Cap filing tips, I will add them to this post so check back soon.

Feel free to drop any comments or questions below.

Categories: H-1B FY2008 Tags: ,

BALCA on Qualifying Experience with Sponsoring Employer

March 5th, 2008 No comments

Another notable decision from the Board of Alien Labor Certification Appeals (BALCA). You cannot use experience gained with the employer sponsoring your labor certification to qualify for the position being offered, unless the experience was gained in a sufficiently different position.

Matter of Century Wilshire Hotel, 2007-INA-00022 (10/15/07). [pdf decision]

…the Employer attempted in rebuttal to establish that the Alien gained qualifying experience for its Hotel Manager position while working as a Clerk. Although we might be willing to accept that some hotels may promote clerks to manager, the position taken by the Employer fails to establish that the requirements stated on the application were its actual minimum requirements for the job.

Categories: BALCA Decisions Tags:

BALCA Finds Lack of Good Faith Recruitment

March 3rd, 2008 No comments

Good Faith Recruitment

Matter of El Jalisco Mexican Restaurant, 2007-INA-00010 (12/10/07). [pdf decision]

We concur with the CO that the evidence of one minute or less for telephone contact with the applicants is inadequate to establish good faith efforts to recruit. If the Employer actually spoke to the applicants, it is not credible to believe that one minute was enough time to introduce the reason for the call, determine that the applicants did not have the requisite experience, and receive a statement from the applicants that they were not interested in the position. If the Employer’s attorney misunderstood the facts of the case in the appellate brief, and the Employer never actually talked to the applicants, then the absence of any attempt to follow up the phone calls with a letter exhibits a lack of good faith effort by the Employer to contact and consider these potentially qualified U.S. applicants.

BALCA Finds No Bona Fide Job Opportunity

March 1st, 2008 No comments

Matter of PR Consultants, 2007-INA-00066 (1/16/08). [pdf decision]

Based upon Employer’s failure to provide the documentation reasonably requested by the CO in her effort to determine whether permanent full-time employment, as required by 20 C.F.R. §§656.3 and 656.20(c)(8), was being offered in this matter, we find that the CO properly found that the Employer failed to establish that it was offering a bona fide job opportunity.

BALCA Finds Employer Violated Job Order Rule

March 1st, 2008 No comments

Matter of Beck AG Operations, 2008-PER-00005 (12/18/07). [pdf decision]

The Employer clearly violated 20 C.F.R. § 656.17(e)(2)(i) by failing to place a job order of 30 days duration. The Employer’s lack of awareness that a job order was required is an insufficient justification to overcome the deficiency in the application. Thus, we affirm the CO’s denial of labor certification.

Categories: BALCA Decisions Tags: ,