Mid Summer Updates 2006
July 18, 2006
Labor Certifications
We are proud to report victory in our firm's advocacy efforts on behalf of employers. Our partner, Mary Jane Weaver, was one of the authors of the AMICUS brief filed by our attorney association, "AILA."
This is the first case appeal since the PERM regulations went into effect last March, 2005. In this case, an employer challenged a denial by the DOL's Computer PERM MATRIX, due to a typographical error, which denial the certifying officer refused to re-consider. The administrative appeal board, BALCA, yesterday decided that the DOL abused its discretion in not re-considering an otherwise approvable case. Moving forward, this decision should have a tremendously positive impact for employers filing PERM applications.
H-1Bs
Advanced Degree Exemption
These visas are almost used up for fiscal year starting October 1, 2006. Please contact our office immediately if you have any new candidates holding U.S. advanced degrees.
Debarment from H-1B Program, Fines and other Penalties for Benching Employees
The DOL is enforcing employer obligations under the H-1B program, particularly attestations made under the Labor Condition Application. The DOL's Administrative Review Board recently ordered back pay for H-1B employees found to have been improperly benched. In Synergy v. the Department of Labor Administrative Review Board, the ARB also fined the employer and debarred it from filing H-1B cases for two years.
Visa Retrogression
The State Department's August Bulletin, released July 17, 2006, offered little good news. For the EB-2 category, there are no visas available for Indian nationals, and no advancement for Chinese nationals. EB-2 visas are still current for other nationals, however. For the EB-3 category, there was retrogression for Indian nationals and no advancement for other nationals. We offer a historical perspective, however, that visa numbers seem at their worst each summer, which is the end of the government's fiscal year. In the fall, some progress usually occurs. It is probably a good idea to set expectations on the permanent residence process with your Indian and Chinese national employees.
DV Lottery for Fiscal Year 2007
The Diversity Immigrant Visa Program occurs once a year. Those who win this immigration lottery may be eligible to process for lawful permanent residence. The U.S. Department of State Lottery Center in Kentucky just announced and registered the winners. Time frames to complete the process are tight. Please contact us if any of your employees have "won" this lottery and wish assistance in the application process to obtain permanent residence.
We hope this information is helpful. Please contact our office if you have any questions.
