Archive for July, 2013
Our office is getting reports from clients, readers and colleagues from other firms that there is an alarming trend in recent PERM Labor Certification application denials due to an overly broad education requirement. Specifically, DOL denies PERM applications, usually after an audit, with the stated reason that the “educational requirements are too broad, and thus, the Certifying Officer is unable to determine the employer’s actual minimum requirements for the job opportunity.” In several reported cases, DOL used this identical language to deny PERM applications where the job requirements included a degree in the fields of “Engineering” or “Business.”
Specifics on the PERM Denial Rationale
In its justification for the denials, DOL argues that a degree in Engineering or Business are simply so broad that an Engineer in a field unrelated to the employer’s needs (for example, for a Computer Systems Analyst position) would not be considered. We are aware that there are similar denials where the position requires a degree in “Business.” Specifically, the PERM denial letter reads:
[T]the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of Senior Programmer, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a [Computer Systems Analyst].
For example, U.S. workers who have a degree in an engineering field like “Agricultural Engineering” are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the [Computer Systems Analyst] position. Specifically, the curriculum for a degree in Agricultural Engineering focuses on educating students in the analysis and design of machinery, animal housing, and environmental systems for the production, processing, storage, handling, distribution, and use of food, feed, fiber and other biomaterials, and the management of related natural resources, by integrating basic physical and biological sciences with engineering design principles.
Because the employer’s education requirements are so broad, the Certifying Officer is unable to determine if these requirements are normal to the position and/or if they are unduly restrictive. Therefore, the Certifying Officer has concluded that an applicant with any engineering degree (emphasis in original) would not have the skills necessary to perform the duties of the position in an acceptable manner, and as a result, is unable to determine the employer’s actual minimum requirements for the job opportunity.
I think it is fair to say that many other immigration practitioners and employers are troubled by such misinterpretation of an employer’s intent. Also, in a way, it is a contradiction of DOL’s own PERM policy to discourage employers from narrowly tailoring the job description to fit a specific candidate. DOL is claiming that because the job requirements are too broad, the position may be unduly restrictive which is a circular argument.
Trend or a Temporary Event?
This kind of denials have started to be issued over the past few weeks so we do not yet have great data to work with and make conclusions as to whether this is a new DOL “guidance by denial” or a situation which would be corrected internally at DOL and so that PERM applications drafted in this way would continue to be approved as they have been in the past.
Unfortunately, there are thousands of PERM applications out there where the requirements may be drafted in a similar way as it is not uncommon for employers to draft job requirements in a way to attract the best possible talent. Also, unfortunately, the mechanics of the PERM process make it very hard to adjust quickly — it takes often 4-6 months to prepare and file a PERM process due to the prevailing wage and advertising requirements.
We will continue monitoring this PERM denial trend and will report as we hear more on the topic, hopefully directly from DOL.
What To Do with the Denied PERM Cases – Appeal or Refile?
Before evaluating the options for appeal or refiling, it is important to understand that the appeal process is very time-sensitive. Employers are given 30 days from the date of the PERM denial to file request for review the denial determination. This, an employer who wishes to preserve its appeal options has a very limited period to file a request for review. As of right now, it is unclear whether BALCA would ultimately support this kind of a denial reason. Unfortunately, it would take many months (or few years) to hear from BALCA as to whether this kind of educational requirements are permitted.
In the meantime, we urge employers to review each individual employee’s circumstances in order to evaluate the best options. Generally, for employees who are on H-1B status and are approaching their 6th year H-1B maximum, an appeal is a very good (if not required) option. A refiling may make sense for employees who have sufficient H-1B time before reaching the 6th year limit. Also, the employer should consider the employee’s country of nationality and whether or not an earlier priority date is critical. For example, an Indian-national employee would certainly benefit from an appeal (which would hopefully be successful) because they would retain the priority date. On the other hand, an employee who is a “rest of the world” national under EB-2 would perhaps not need to worry about retaining priority date (as EB-2 ROW is current) and would perhaps benefit from a refiling.
These are very case general strategy pointers — we are happy to help evaluate this kind of (or related) PERM denials and provide consultation on the best options.
We are hopeful that this trend of PERM denials would turn out to be a temporary blip and that many of the denied PERM cases would be approved on appeal. We will continue monitoring this topic over the next few weeks to determine whether there are any long-term trends such as substantive rule guidance as a result of these denials. Have you received this kind of a PERM denial? Let us know — we will be also happy to provide an initial consultation to evaluate further options or assist in an appeal or refiling process. Also, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.No comments
The U.S. State Department has just released the August 2013 Visa Bulletin which is the eleventh Visa Bulletin for the FY2013 fiscal year. The major headline in the upcoming month’s Visa Bulletin is the significant forward movement in EB-2 India, FB-2A being current for every country and the lack of movement for EB-3.
Summary of the August 2013 Visa Bulletin – Employment-Based (EB)
Below is a summary of the August 2013 Visa Bulletin with respect to employment-based petitions:
- EB-1 remains current across the board.
- EB-2 for ROW, Mexico and Philippines are all current. EB-2 India moves forward (finally!) by three years and four months to January 1, 2008. EB-2 China remains unchanged at August 8, 2008.
- EB-3 ROW, China and Mexico remain unchanged at January 1, 2009. EB-3 Philippines moves forward by three (3) weeks to October 22, 2006, while EB-3 India remains unchanged at January 22, 2003.
- The “other worker” category remains unchanged for ROW and Mexico at January 1, 2009. It moves forward by three (3) weeks to October 22, 2006 for Philippines and remains unchanged at March 22, 2004 for China and it also remains unchanged at January 22, 2003 for India.
Summary of the August 2013 Visa Bulletin – Family-Based (FB)
Below is a summary of the August 2013 Visa Bulletin with respect to family-based petitions:
- FB-1 continues to move forward. FB-1 ROW, China and India all move forward by three (3) months to September 1, 2006. FB-1 Mexico moves forward by only one (1) week to September 1, 1993 and FB-1 Philippines moves forward by six (6) months to January 1, 2001.
- FB-2A is current for everyone.
- FB-2B ROW, China and India all move forward by one (1) month to December 1, 2005. FB-2B Mexico moves forward by three (4) months to February 1, 1994 while FB-2B Philippines remains unchanged at December 22, 2002.
EB-2 India Finally Moves Forward – Significantly
Another very significant development brought by the August 2013 Visa Bulletin is making FB-2A current for all countries. The Department of State has indicated that this category has become “Current” for August, and is expected to remain so for the next several months. The reason is that the Department of State wants to stimulate an increased level of “demand” (filings) in this category. The Department of State reports that even though there are large amounts of registered F2A demand, currently there are not enough applicants (NVC fees paid and I-485 adjustment of status cases filed) who are actively pursuing final action on their case to fully utilize all of the available numbers.
No Movement in EB-3 and EB-2 China
Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, specifically in EB-2 India and FB-2A all countries. Those applicants whose priority dates are current as of the August 2013 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad. Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates. We are also happy to provide a free quote for preparing and filing your I-485 application.
We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the August 2013 Visa Bulletin. Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.
Many of our clients and readers are already aware of the June 13, 2013 “RFE blizzard” where U.S. Citizenship and Immigration Service (“USCIS”) issued thousands of identical requests for evidence (“RFE”) on pending employment-based primary and derivative Form I-485, Application to Adjust Status. Many would remember that in our article from two weeks ago, we discussed how derivative I-485 applicants should not have been issued such an RFE. Now, in another set of thousands of notices, most dated June 26, USCIS is informing derivative I-485 applicants that their I-485 RFE is essentially retracted and they no longer need to respond to it. Please see a redacted sample of the RFE retraction notice.
Derivative Applicants Receiving RFE Retraction Letter – I-485 RFE Response Optional; Primary Applicants Must Respond to June 13 RFE
It is important to underscore what this notice means and what it does not mean. Derivative applicants (spouses and children) who received the June 13, 2013 I-485 RFE and who now received this RFE retraction notice do not have to respond to the June 13 RFE any longer. USCIS is specific in the RFE retraction notice in saying that a derivative I-485 application will not be denied for failure to respond to the June 13 RFE.
However, and very importantly, if a derivative I-485 applicants has an RFE which is different than the June 13 RFE (see sample), USCIS will expect to receive an RFE response or they can deny the I-485 derivative application. Also, primary applicants who received the June 13 RFE are expected to respond to it on time or their application (including the derivative I-485) application may be denied for failure of the primary applicant to respond to the June 13 RFE.
Attorney Assistance with Preparing RFE Response
Our office will be happy to provide consultations or assistance with responding to this (or other) kind of RFE. If you would like to schedule a consultation with an attorney to discuss a specific case (but perhaps without engaging us to help with the RFE filing), we offer phone consultations.
We are also happy and available to assist with a more comprehensive RFE response representation. Please feel free to complete this RFE inquiry form and we will be happy to provide thoughts and, if applicable, a quote for our legal assistance.
As USCIS is preparing to adjudicate visa-retrogressed I-485 applications, we expect busy July and August months, especially if the August 2013 Visa Bulletin shows forward movement in many of the heavily-retrogressed categories. For many applicants, however, who may expect to see their priority become current over the next two to three months (see our expectations), responding to this kind of an RFE becomes very time-sensitive in order to have a complete case ready for approval once the priority date becomes current.