Join our FREE E-Newsletter today!

Backlog News-Breaking News
On August 25, 2006 CIS began the premium processing program for EB3 I-140 cases. Beginning September 25, 2006 the program has been expanded to include all employment categories except Extraordinary Ability, Multinational Executives and National I Interest Waiver cases.

For those of you who have been anxious to know (and you know who you are) the Department of Labor PERM website at www.plc.doleta.gov now indicates that the Backlog will be eliminated by September 30, 2007.

Volume I-9 S&K January 2007 Newsletter

OUTLOOK FOR THE NEW YEAR

As we welcome the New Year, we anxiously await action from the 110th Congress to enact legislation which will increase opportunities for American businesses to obtain needed workers by reducing the backlogs that exist by virtue of the outdated quota system and providing benefits to spouses of temporary workers who presently are unable to seek employment. We need a fair and balanced approach to deal with the undocumented population in this country but not at the expense of those pursuing status legally.

Senate leaders have designated comprehensive immigration reform as a top priority for the coming year. We strongly urge each of you to contact Senator’s and Representative’s in your district to support immigration reform legislation.

On January 4, 2007 Senator Patrick Leahy (D-VT), Chairman of the Senate Judiciary Committee introduced the Comprehensive Immigration Reform Act of 2007. We are providing a link for you to review the bill.

http://thomas.loc.gov/cgi-bin/query/z?c110:S.9.IS:

EMPLOYMENT WITH PETITIONING EMPLOYER TO QUALIFY FOR A LABOR CERTIFICATION

We thought we would begin the New Year by reviewing a recent decision of the Board of Alien Labor Certification Appeals. In the Matter of Harvest Office Services Inc. t/a  The Catalyst Group decided December 7, 2006 by the Board of Alien Labor Certification Appeals.

The case deals with the issue of using experience gained with the petitioning employer to qualify for a labor certification (pre-Perm).

The employer in this case required two years of college education and six months of experience in the related occupation of administrative assistant or in the alternative High School graduate plus two years of experience as an Administrative Assistant or equivalent. The certifying officer issued a notice of findings intending to deny the application because the foreign national gained his experience required for the job with the petitioning employer. The certifying officer ultimately denied the certification after considering the employer’s rebuttal.

The issue arose from the fact that the foreign national gained all his experience with Paul Sherman and Associates. The employer argued that this was a different employer than the petitioning employer. The petitioning employer was The Catalyst Group. The Board reviewed previous case law and determined that the fundamental question is whether the employer is circumventing the fair testing of the labor market by shifting the foreign national from one entity to another. The Board made it clear that the fact that two employers are separate legal entities may not be sufficient to demonstrate they are separate employers for labor certification purposes (pre-Perm).

The Board found that although The Catalyst Group was a distinct entity, the close relationship with the previous employer Paul Sherman and Associates cannot be ignored. In this case the Attorney representing the sponsoring employer and alien is the owner of the law firm (Paul Sherman) and part owner with his wife of the Catalyst Group.

The address for both companies is the same. In this case as it has done in the past, the Board disregarded the corporate form to defeat the overriding public policy interest which in this case is ensuring a fair test of the labor market in labor certification cases. This case was decided based on the 2004 Code of Federal Regulations 20 CFR Section 656.21(b)(5). 

NOTE: Consider the regulatory changes made by PERM. Review 20 CFR 656.17. The DOL will continue to measure the training and experience of the foreign national at the time of initial hire by the employer. However,  the same “employer” means an entity with the same Federal Tax Identification number. Time spent working for a different employer as a contract employee may be used to qualify for the labor certification. The same holds true for time spent with a related employer abroad. However, time spent as an independent contractor working for the petitioning employer may not be used. 

HAPPY NEW YEAR FROM S&K

Newsletter Archive

The information contained in our newsletter is not meant as legal advice. The information is of a general nature and does not create an attorney client relationship. Please consult a qualified attorney and discuss the specific facts of your case before taking any action.