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In a written decision last week, the Board of Alien Labor Certification Appeals (BALCA) maintained that an employer is not required to detail why it rejected U.S. job applicants beyond stating that the candidates lacked the qualifications even with a reasonable amount of training.
The employer in the case petitioned for permanent labor certification (PERM) on behalf of a foreign national for the position of engineering manager. The employer was audited and asked to provide resumes of U.S. applicants and reasons why they were not hired for the position. The certifying officer of U.S. Citizenship and Immigration Services denied the PERM petition on the grounds that the employer made only a generalized statement that the U.S. workers did not meet the minimum job requirements.
Regulations require that an employer petitioning for PERM prepare a signed recruitment report describing steps it took to hire U.S. workers and the results of that search, including “lawful job related reasons for such rejections.” The employer’s recruitment report stated that it had received eight resumes from U.S. workers and that “All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.”
On appeal, BALCA found that the employer’s explanation for rejection of the U.S. job applicants was sufficient.
“The regulation does not indicate a level of specificity beyond what the employer provided,” BALCA said in its decision. “The employer’s report indicated that eight U.S. workers applied and were rejected due to a lack of experience. Lack of experience is a lawful reason for rejecting applicants.”
The board reversed the officer’s decision and granted the PERM petition.
BAL Analysis: The ruling confirms that immigration regulations do not require an employer to provide specific details as to why it rejected U.S. candidates for a job to be filled by a foreign beneficiary of a labor certification petition.
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A group of foreign nationals has filed a class action lawsuit, claiming that U.S. Citizenship and Immigration Services is not issuing employment authorization in a timely manner as required by law. The suit claims that the agency is not following regulations that require adjudication of employment authorization applications within 90 days, adjudication of initial applications by eligible asylum applicants within 30 days, and issuance of interim employment authorization valid for 240 days in cases where adjudication is not possible in those windows.
According to the complaint, the government violates these mandates by delaying adjudication and “consistently failing to issue interim employment authorization” to applicants, and compounds the problem by providing “incorrect and conflicting information” to applicants who submit inquiries to USCIS. The plaintiffs claim that the delays put employers in a difficult position because they face civil fines for continuing to employ workers without re-verifying employment authorization documents before their expirations.
“In fact, employers may be forced to lay off these workers to avoid the risk of fines imposed by Immigration and Customs Enforcement,” the complaint alleges.
The plaintiffs are eligible individuals who have waited more than 90 days for employment authorization and have not been issued interim authorization. The lawsuit seeks class certification for all individuals who are similarly situated and asks the court to order USCIS to timely adjudicate employment authorization applications or issue interim employment authorization documents where the periods have elapsed.
The case is Northwest Immigrant Rights Project et al. v. U.S. Citizenship and Immigration Services, 2:15-cv-00813, U.S. District Court for the Western District of Washington.
The U.S. State Department has proposed a rule that would eliminate the option of adding extra pages to U.S. passports beginning on Jan. 1, 2016.
Currently, American citizens can apply for either a 28-page or 52-page standard passport and then request to add visa pages to them while they are is still valid if passport holders need more pages for visa stamps.
According to the proposed rule, inserting pages is a security concern and elimination of the option would coincide with a 2016 rollout of the Next Generation Passport, which incorporates new security features “designed to protect the integrity of U.S. passport books against fraud and misuse.”
To accommodate frequent travelers, the State Department began issuing the larger 52-page passports in October 2014 to all overseas applicants at no extra cost, and Americans applying domestically can request the larger passports on the application form at no extra cost.
The Department will accept comments from the public for 60 days and intends to implement it on Jan. 1, 2016.
BAL Analysis: U.S. passport holders who expect to require extra pages should apply before the rule change or apply for a new passport containing 52 pages ahead of travel plans. Additionally, it is important to note that some U.S. passport agencies have already begun asking travelers to request new passports instead of processing requests to add additional passport pages. Although full implementation is not expected for several months, some U.S. passport agencies may still ask for new passport applications in lieu of adding additional pages. Travelers should plan accordingly.
The White House has released a progress report on the implementation of a plan that facilitates trade and travel between the U.S. and Canada.
The third annual implementation report, issued May 19, documents the progress made over the past year on the bilateral Beyond the Border Action Plan. That plan was set by President Obama and Prime Minister Harper in 2011 and outlines joint priorities and initiatives for the U.S. and Canada.
The report introduces a new “Forward Plan” and includes updates on enhanced measures intended to deepen and strengthen the unique bilateral relationship between the U.S. and Canada. Several of these framework proposals involve additional information sharing with regard to visas and streamlining the travel process for both trusted travelers and business travelers.
Perhaps the most significant development for Beyond the Border over the past year was the announcement of consideration of a Known Employer pilot program to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers. While the Known Employer pilot has not yet been implemented, it is expected to commence by late 2015.
BAL Analysis: BAL has been working closely with DHS and the Beyond the Border working group over the years to move its critical business competitiveness initiatives forward and will continue to provide further updates as they become available.
Washington, D.C. – Judge Tanya S. Chutkan, ruling on Sunday, denied a motion to block the H-4 spousal work rule from taking effect after hearing arguments last week. The new rule promulgated by the Department of Homeland Security, which allows certain H-4 spouses of H-1B workers to apply for employment authorization, has therefore gone into effect today as scheduled.
Save Jobs USA, an organization of computer workers, asked the court to grant a preliminary injunction to stop the rule, claiming that the rule would force its members to compete with H-4 visa holders for technology jobs. The judge concluded that Save Jobs USA failed to meet the standard for granting a preliminary injunction because it did not demonstrate that the injuries it alleged are “certain, great, actual, imminent, and beyond remediation.”
“[A]t this stage, it is entirely speculative whether any H-4 visa holders will ever apply for . . . IT jobs at all,” Judge Chutkan said in a 12-page opinion. Judge Chutkan stated that neither party’s arguments regarding Save Jobs USA’s likelihood of success were sufficient to outweigh those of the other side enough to affect her analysis at this point in the case. Although she did not decide whether Save Jobs USA showed a likelihood that its claims against DHS would ultimately succeed, she noted that the group presented “non-frivolous arguments why its claims might prevail.”
Though the request to halt implementation of the regulation was denied, the litigation has not been dismissed. DHS filed a motion to dismiss the case May 11, and Judge Chutkan has set a deadline of May 29 by which time the parties must submit a proposed briefing schedule for the pending motion.
The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615.
A federal appeals court has refused to lift a block on President Obama’s immigration executive actions. The ruling, which was issued today, leaves the actions that are being challenged in the lawsuit temporarily on hold.
The executive actions would allow an estimated 4.3 million undocumented immigrants to delay deportation and obtain work authorization under an expansion of the Deferred Action for Childhood Arrivals (DACA) program and creation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.
The actions have been on hold since Feb. 16, when a Texas judge granted an injunction. The Justice Department appealed to the U.S. Court of Appeals for the 5th Circuit, asking the court to lift the injunction and let the executive actions take effect while the court decides the underlying issues.
In the underlying lawsuit, 26 states have sued to permanently stop the executive actions, contending that they unlawfully skirt rulemaking procedures and impose new costs on states that would be required to issue benefits such as driver’s licenses to undocumented immigrants.
In a 2-1 decision, the appeals court found that DOJ was unlikely to succeed in showing that the states lacked standing to bring the lawsuit. It also found that the government did not make a strong showing that the executive actions are not subject to judicial review, or that DAPA is exempt from notice-and-comment procedures required by the Administrative Procedure Act.
The court also denied the government’s request to narrow the scope of the injunction so that it only applies to Texas or the other states that brought the lawsuit. Therefore, the injunction remains in effect nationwide.
Washington, D.C. – A federal judge held a hearing Thursday on a motion to stop the Department of Homeland Security from implementing its new regulation allowing certain H-4 dependent spouses of H-1B visa holders to apply for work authorization. The organization Save Jobs USA filed the motion for a preliminary injunction as part of a lawsuit it brought April 23 against DHS challenging the regulation. The new rule enables certain H-4 spouses to apply for employment authorization and is scheduled to take effect May 26.
In questioning the attorney representing Save Jobs USA, Judge Tanya S. Chutkan appeared skeptical and emphasized that courts only intervene under extreme circumstances to grant preliminary injunctions. A preliminary injunction would stop the rule while the court decides the main issues of whether DHS exceeded its authority in promulgating the regulation. The judge questioned whether members of the organization will suffer concrete harm if the rule goes into effect and expressed doubt regarding whether the harm they allege would be irreparable. To succeed, the group must show that its members will suffer concrete and irreparable harm as a result of the rule. Save Jobs USA, an organization of computer workers, claims the rule will harm its members because they will be in direct competition with H-4 dependent spouses for jobs in the technology industry.
The judge indicated that she would rule on the motion “shortly” and we expect that she will issue a decision in the days ahead. The case is Save Jobs USA v. U.S. Department of Homeland Security, U.S. District Court for the District of Columbia, C.A. No. 1:15-CV-615.
In a case filed last year in the same court, a judge found that another group of American technology workers had standing to challenge the 17-month STEM Optional Practical Training program. That case, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, remains pending in the U.S. District Court for the District of Columbia.
BAL Analysis: Unless the court accepts Save Jobs USA’s claims and grants the preliminary injunction blocking the rule, the H-4 rule will take effect May 26 and USCIS will begin to accept applications as scheduled.
U.S. Citizenship and Immigration Services today released a new Form I-765 Application for Employment Authorization to be used by H-4 dependent spouses applying for work authorization under a new regulation.
The new form was made available today, one business day before USCIS will begin accepting applications under the new rule on May 26. The rule allows certain H-4 dependent spouses of H-1B employees to obtain employment authorization.
According to a USCIS announcement, while the agency will continue to accept earlier versions of Form I-765, H-4 applicants should use the new version of the form “to prevent delays or the need for USCIS to issue you a request for evidence.”
BAL Analysis: H-4 applicants who have prepared their applications using the old form may contact their BAL attorney if they wish to submit their applications using the new form.
U.S. Citizenship and Immigration Services has released guidance clarifying last month’s precedent decision by the Administrative Appeals Office finding that employers must file an amended H-1B petition when an H-1B employee changes worksite locations and a new Labor Condition Application is required.
Significantly, the guidance confirms that the ruling, Matter of Simeio Solutions, applies to worksite changes that occurred before the April 9 ruling. Therefore, employers whose H-1B employees changed locations before the ruling are required to file amended H-1B petitions. Employers who have not filed amended H-1B petitions for those employees must file no later than Aug. 19.
Additionally, employers who have not yet filed amended H-1B petitions for workplace location changes that occurred after the ruling but before May 21 will also have until April 19 to file an amended petition.
Failure to file by that date will result in both the employer and H-1B employee being out of compliance and subject to adverse action.
The guidance provides other clarifications:
The case is Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015).
BAL Analysis: Employers who relied in good faith on existing agency correspondence before the decision and did not file amended petitions for H-1B workers who changed locations before April 9 will not face adverse action, but are now on notice that they must file amended petitions for H-1B worksite changes no later than Aug. 19 to be in compliance.
CHAMBERS USA 2015 PUBLISHED RANKINGS
Once again, BAL has been ranked by Chambers USA as a Band 1 firm in the Nationwide category as well as in the states of its largest offices, California and Texas.
NATIONWIDE BAND 1 Known for: Recognized as one of the leading and largest immigration groups in the nation. Possesses tremendous firepower to manage the corporate immigration programs and global movement of a high volume of clients. Provides comprehensive expertise across the full suite of non-immigrant and immigrant employment visa categories. Adept at briefing multinational corporates on compliance best practices.
Strengths: “They provide clear and creative solutions to difficult cases.” “We feel comfortable that we are maintaining full compliance and that our employees are kept up to date on their cases at all times.”
Notable practitioners: The “very smart and adept” David Berry stands out as one of the firm’s most capable and eminent attorneys. Operating out of the San Francisco office, he expertly guides multinational corporations through the compliance process and provides insightful counsel on the immigration consequences of M&A activity.
Lynden Melmed combines a deep understanding of immigration law with an unique insight into the federal government branches, formed during his position as Chief Counsel of the United States Citizenship and Immigration Services (USCIS). He is considered a go-to practitioner for advice on highly sensitive issues that involve government audits and immigration investigations.
CALIFORNIA BAND 1 Known for: Powerful West Coast presence as part of a prominent national practice representing a range of major organizations. Provides sophisticated advice on a broad array of corporate immigration matters including compliance, global migration and inbound visas.
Strengths: “… they take the experience of the entire process very seriously. They jump in to help whenever they can, which is critical for us.”
Work highlights: Secured a decisive victory for a substantial technology company regarding the requirements of online job advertisements as part of the PERM labor certification process.
Notable practitioners “Talented lawyer” David Berry is held in high regard by market commentators, who appreciate his “very cordial” approach. His expertise spans a range of challenging issues faced by employers, from corporate compliance to due diligence following mergers and acquisitions.
San Francisco partner Susan Wehrer excels at advising clients on a host of business immigration matters including the labor certification process, petitions for individuals of extraordinary ability and adjustment of status applications. Sources describe her as a “dynamic, smart and excellent lawyer.”
TEXAS BAND 1 Known for: Market-leading presence with a nationwide profile in all areas of corporate immigration. Represents major corporates from the oil and gas, technology and engineering industries among others in a range of matters, including the implementation of global mobility and compliance programs.
Strengths: “The tracking system they have is phenomenal. On a daily basis, I am amazed when I get something across after giving them such short notice. They are very proactive and that is hugely important to us.”
“The knowledge is really there. Whenever we have issues, they present us with comprehensive legal options.”
Notable practitioners: Shawn Orme is joint head of the firm’s global immigration practice and is a respected figure in the Texas immigration community. One source notes: “I’ve seen his analysis and respect his work. He is an excellent business immigration attorney.”
Eminent practitioner: Managing partner Jeremy Fudge has an extensive background in business immigration, particularly acting on behalf of large corporates. Sources note his ability to “know and understand larger companies’ needs and meet their expectations with efficient and cost-effective legal representation.”
About Chambers USA
Since 1990, Chambers has published the world’s leading guides to the legal profession and has built a reputation for in-depth, objective research.
The publication has a team of over 140 highly qualified full-time researchers who conduct thousands of interviews with lawyers and their clients worldwide. Working with editors, they identify and rank the world’s best lawyers (i.e. those who perform best according to the criteria most valued by clients – such as technical expertise, business acumen, prompt delivery, value for money). No lawyer can buy their way into Chamber’s rankings. As a result, their directories – published annually – are known to be the most accurate and the most reliable.
Source: Chambers USA