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Backlog News-Breaking News
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-6 July Newsletter

IMMIGRATION REFORM

It is highly unlikely that Congress will reach an agreement on Immigration reform before the elections in November. The question is whether they will be able to come to an agreement during the lame duck session after the election but before the new Congress takes office or whether the new Congress will take up the cause.

Recently HR 5744 was introduced into the House of Representatives. This bill known as the Securing Knowledge, Innovation and Leadership Act of 2006 is a companion bill to Senator Cornyn’s Senate bill. This bill addresses employment immigration reform. We at S&K believe that there will be some employment-based reform before we see any relief for the undocumented in the United States.

The issue continues to generate a strong emotional reaction from both sides. Recently the City Of Hazelton took matters into their own hands by enacting a restrictive immigration ordinance which among other things fines landlords $1000 for renting a property to an illegal alien and denies businesses hiring illegal aliens a business license. It remains to be seen whether this ordinance will survive the Court challenge. It certainly will create an enforcement nightmare as individuals attempt to verify immigration status of tenants. We strongly oppose such an ordinance for a number of reasons including but not limited to the fact that jurisdiction over immigration issues lies with the Federal government.

ADVANCED DEGREE CAP

On July 12, 2006 the USCIS updated the cap count. The total of the pending petitions and those that have not been data entered but received is 16,008. The pace of filings is increasing.

ARRIVING ALIENS AND ADJUSTMENT OF STATUS

On May 12, 2006 the Attorney General through the Executive Office for Immigration Review and the Secretary of the Department of Homeland Security jointly issued an interim rue repealing 8 CFR 245.1©(8). CIS now has jurisdiction over the adjustment application of arriving aliens including parolees who are in removal proceedings.

DOL FINDS LCA VIOLATIONS FOR BENCHING

The Administrative Review Board of the Wage & Hour Division, Employment Standards Administration, U.S. Department of Labor found that Synergy Systems Inc. violated the conditions of the Labor Condition Application. Under the no benching provisions, the INA requires an employer pay the required wages specified in the LCA even if the H-1B non-immigrant employee is in non-productive status because of lack of assigned work or some other employment related reason.

The employer must terminate an employee if a worker will be benched because there is no work. If the employee requires unpaid leave as allowed under the Family Medical Leave Act then employers must document this. In this case the employer created and maintained written records in an attempt to show that the employees had taken a leave of absence when they had not.

The Act provides that the Administrator may assess civil monetary penalties up to $1000.00 for non-willful violations and up to $5000 for willful violations or for discrimination. In this case back wages were awarded, a $5000 fine and a two year bar against the company for filing H-1B petitions.

AVOID FUTURE RFE PROBLEMS-KEEP COPIES

As part of the adjudication process of various applications, it is important to demonstrate that you have maintained valid non-immigrant status since your entry to the United States. We suggest you keep copies of all Form I-94 and any old passports. In addition, maintain copies of all old pay statements in the event you are called upon to provide evidence that you have maintained your status in the United States.

At the time of entry review the I-94, make sure the authorized stay corresponds with the time period on your I-797. If it does not, bring this fact to the attention of the officer at the port of entry.

PREMIUM PROCESSING I-140 APPLICATIONS

Many of you have asked when CIS will permit the premium processing of the I-140 applications. According to the CIS they are continuing to “actively” work on this regulation.

EXPERIENCE WITH THE SAME EMPLOYER

Many of you have asked about the minimum requirements for a position in the context of a PERM filing. 20 CFR 656.17(h)(l) provides that the requirements for the job must be those normally required for the occupation and must not exceed the Specific Vocational Preparation (SVP) level contained din the O*NET Job Zones.

In the real world experience gained with an employer many times will qualify an employee for advancement or perhaps securing an advanced degree may result in a promotion. Not only must the alien worker possess the minimum requirements at the time of hire, the employer must not have hired workers for this position or similar positions with less than the minimum requirements.

20 CFR 656.17(i)(3) states that the DOL will review the training and experience of the alien worker ay the time of hiring by the employer. The time of hire is the time the worker began his employment as an H-1B worker. The ability to use on the job experience is very limited. The reasoning is that if a foreign worker could obtain the experience on the job, the employer could hire a US worker and give him or her the same on the job experience.

Under PERM, the decision in Matter of Delitzer Corp of Newton has been codified at 20 CFR 656.17(i)(5)(ii). An employer must prove that the two positions are not substantially comparable. This means that the new job requires performance of different job duties more than 50% of the time. If the jobs differ significantly it the raises the issue of whether and how it prepares a worker for the new position. An employer may then be required to indicate that the employer is willing to accept any suitable combination of work experience, education and training that is equivalent to the actual minimum requirements for the position and shows a demonstrated ability in the required skill set.

The other limited time we can use experience gained with the Petitioning employer is where it is no longer feasible to train a worker to qualify for the position.

Employer’s must keep in mind consistency in their filings. If the position requires a Bachelor’s degree at the time an H-1B application is filed can you honestly say that six weeks later in the context of a PERM filing that a Master’s degree is required?

Utilizing experience gained with the Petitioning employer always creates a certain level of risk. These cases require extensive documentation.

If your group is looking for a speaker to discuss immigration topics of interest, please be sure to contact us for availability at info@inslawonline.com.

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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.