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Priority date predictions from Department of State

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News Release from Jewell & Associates, PC – July 2, 2012 The Department of State’s Charlie Oppenheim has spoken to AILA about cut-off date predictions for October 2012 – the start of the 2013 fiscal year. Highlights include:

  • EB-2 worldwide will be current.
  • EB-2 China and India, which are currently “unavailable,” will return to around August 2007. It is unlikely that they will advance at all until April 2013.
  • State has pre-adjudicated 17,000 EB-2 cases for natives of China, India, and worldwide with priority dates after January 1, 2009. There will therefore be many cases queued up for adjudication in October 2012 and it will take some time to get through them.

From AILA InfoNet Doc. No. 12012349 (posted Jun. 28, 2012).

© Jewell & Associates, PC 2012

STEM degree list for OPT extensions expanded

News Release from Jewell & Associates, PC – May 17, 2012 International students who graduate from U.S. universities are able to remain here and receive training through work experience for up to twelve months. This is known as Optional Practical Training (OPT). Students who graduate from a designated science, technology, engineering, and math (STEM) degree, who have jobs related to their field of study with employers who are enrolled in the government’s E-Verify program, can remain in the U.S. for an additional seventeen months on an OPT STEM extension. We covered the regulation establishing this extension in a detailed post in 2008.

On May 11, 2012 the Department of Homeland Security announced an expanded list of STEM designated-degree programs that qualify eligible graduates for this extension. The list now includes fields such as pharmaceutical sciences, econometrics, quantitative economics, and more. A full list of STEM degrees is available here, with new additions in bold, and will be of interest to students, employers, and employees with eligible degrees who are currently in their first 12 months of OPT.

© Jewell & Associates, PC 2012

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BALCA overturns denial of labor certification for omission of employer’s name from “private employment firm” recruitment step

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As we have noted in previous posts, employers wishing to file labor certifications on behalf of their employees must follow strict recruiting guidelines set by the Department of Labor. This includes the performance of three of ten optional recruitment steps. One of these optional recruitment steps is the use of a private employment firm or placement agency, which can be documented by material “sufficient to demonstrate that recruitment has been conducted.” See 20 C.F.R. § 656.17(e)(1)(ii)(F). The regulation gives two examples of such material: Copies of contracts between the employer and the firm, and copies of advertisements placed.

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Cut-off dates for EB-2 India and China will retrogress to August 15, 2007

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News Release from Jewell & Associates, PC – March 23, 2012 UPDATE: The Department of State has informed AILA that when the May Visa Bulletin is published, the China and India EB-2 cut-off dates will retrogress to August 15, 2007 and remain there for the remainder of fiscal year 2012. It was “too early” to predict movement for the remainder of the calendar year.

From AILA InfoNet Doc. No. 12032365 (posted Mar. 23, 2012).

© Jewell & Associates, PC 2012

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Priority Date projections for EB-2 India and China

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News Release from Jewell & Associates, PC – March 19, 2012 The recent rapid progress of the cut-off dates for Indian and Chinese nationals in the EB-2 preference category will end soon, according to the Department of State’s Chief of Visa Control and Reporting, Charlie Oppenheim:

On March 16, 2012, at the AILA Midwest Regional Conference in Chicago, Charlie Oppenheim… informed participants that he will likely retrogress India and China-mainland born Employment-Based Second Preference priority dates to around August 2007, effective with either the May or June 2012 Visa Bulletin. He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

From AILA InfoNet Doc. No. 12031639 (posted Mar. 16, 2012) (emphasis added).

© Jewell & Associates, PC 2012

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BALCA overturns labor certification denial, the sole basis of which was omission of job order from audit response

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Employers wishing to file labor certifications on behalf of their employees must follow strict recruiting guidelines set by the Department of Labor (DOL). One of the required recruitment steps is posting an online job order with the appropriate State Workforce Agency (SWA) for a period of 30 days. The regulation regarding how to record posting of the job order says “[t]he start and end dates of the job order entered on [Form ETA-9089] serve as documentation of this step.” See 20 C.F.R. § 656.17(e)(2)(i).

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BALCA reverses labor certification denial: Omission of optional benefit from recruitment advertisements not fatal

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Employers placing advertisements for their labor certification applications must draft them carefully to ensure they comply with the PERM regulations. 20 CFR 656.17(f)(7) states that ads may not contain terms and conditions of employment that are “less favorable than those offered to the alien.” However, the Department of Labor has also said that employers have the option of placing “broadly written advertisements with few details regarding job duties and requirements” (PERM FAQs, March 3, 2005). Between these statements is a puzzle for employers: Which terms and conditions may be omitted if the ads are to remain compliant?

USCIS Notices – Mailroom Alert!

News Release from Jewell & Associates, PC – September 21, 2011 In an unannounced but apparently official change in policy, U.S. Citizenship & Immigration Services (USCIS) is no longer sending the “original” version of important official documents to immigration lawyers representing petitioning companies and employees.  Instead, USCIS is mailing “original” approval notices (Forms I-797) directly to the petitioner or applicant, and sending only a “courtesy copy,” lacking critical data, to the lawyer.  Aside from the related logistical inconvenience, the original versions of approval notices are often the only evidence that an employee has of his or her legal status, and can be very difficult to replace.  Moreover, notices from USCIS may be time sensitive for a variety of reasons.  Therefore, large and small companies alike should coordinate with their mailroom to make sure that any mailings from the Department of Homeland Security (DHS) or the U.S. Citizenship & Immigration Services (USCIS) are routed immediately to the appropriate personnel, who can then alert immigration counsel and send the original or copies if needed. 

© Jewell & Associates, PC 2011

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Office of Foreign Labor Certification responds to BALCA decision by revising PERM FAQ

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News Release from Jewell & Associates, PC – September 20, 2011 In a recent post we discussed the BALCA decision In the Matter of The University of Texas at Brownsville, 2010-PER-00887. The Board held that the Certifying Officer was wrong to deny the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. The Certifying Officer, in support of his argument, had referred to an answer to an FAQ by the Office of Foreign Labor Certification (OFLC), which stated that “an electronic national professional journal does not satisfy the optional special recruitment provisions’ advertising requirement. The employer must use a print publication.” The Board disagreed and reaffirmed its position that agencies may not impose substantive rules that have the force of law through answers to “frequently asked questions.”

We thought it sensible that employers and practitioners treat Brownsville with caution until the Department of Labor, through the OFLC, revealed its intent towards the offending FAQ answer. The FAQ and answer have now been revised and can be found at the FAQ web page (and AILA InfoNet, doc. 11090164). The answer is now “yes”: “an employer may use an electronic or web-based national professional journal to satisfy the provision found at 20 CFR 656.18(b)(3), which requires use of a national professional journal for advertisements for college or university teachers.” It then lists three conditions:

  • The journal’s job listings must be viewable to the public without payment of subscription and/or membership charges. UPDATE: This condition was removed from the FAQ on September 28, 2011.
  • The advertisement for the job opportunity for which certification is sought must be posted for at least 30 calendar days on the journal’s website.
  • Documentation of the placement of an advertisement in such a journal must include its text and evidence of its start and end dates.

By Christopher Beckerson. © Jewell & Associates, PC 2011

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Instructions for the 2013 Diversity Visa Lottery Program now available

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News Release from Jewell & Associates, PC – September 16, 2011 The U.S. Department of State’s instructions for the 2013 Diversity Immigrant Visa Program (DV-2013) are now available. Entries for the DV-2013 program must be submitted electronically between October 4, 2011 and November 5, 2011. Changes in eligibility this year: For DV-2013, natives of South Sudan and Poland are now eligible for selection, while Bangladesh natives are now ineligible. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site, http://tinyurl.com/3wa75.

The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2013, 50,000 diversity visas will be available.

© Jewell & Associates, PC 2011