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

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

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

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

Instructions for the 2013 Diversity Visa Lottery Program now available

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,

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

BALCA creates confusion regarding labor certification filing deadlines in GE Energy

In General Electric Company (GE Energy) 2010-PER-763 the employer’s Application for Permanent Labor Certification was accepted for filing by the Department of Labor on October 26, 2009. The employer had posted the job order on April 27—182 days before the filing date—and removed it on May 27. The Certifying Officer (CO) denied the application because the job order was placed more than 180 days before the application was filed, and the job order “must be conducted at least 30 days, but no more than 180 days, before the filing of the application” (20 CFR § 656.17(e)(1)(i)).

BALCA casts doubt on FAQ regarding advertisements in professional journals

In the Matter of The University of Texas at Brownsville (2010-PER-00887), BALCA held that the Certifying Officer (“the CO”) abused his discretion when he denied the employer’s labor certification application on the basis that the national professional journal in which its advertisement was placed was only available electronically. While this may appear to end the Department of Labor’s requirement that such advertisements be in print, there are reasons to be cautious.

In its quest to increase job growth, U.S. to assist foreign entrepreneurs

News Release from Jewell & Associates, PC – August 2, 2011

Breaking news: The Wall Street Journal reports today that Washington will provide immigration benefits to foreign entrepreneurs in its quest to increase job growth in the United States. The WSJ article can be viewed at:

Jewell & Associates, PC will provide further coverage of the details, as they become available, in future posts.

© Jewell & Associates, PC 2011

Green Card Lottery entrants can check status online through June 30, 2012

News Release from Jewell & Associates, PC – July 21, 2011 Now through June, 30, 2012, entrants in the DV-2012 Diversity Visa Lottery may check the status of their entries through the Department State’s Entry Status Check on the State Department’s Electronic Diversity Visa website. To find out if his/her entry was selected (i.e., if he/she “won” the green card lottery), an entrant must use the information on his/her DV-2012 confirmation page. Entry Status Check is the only means by which the Department of State will notify DV-2012 entrants of their selection.  Entry Status Check will give DV-2012 lottery winners instructions on how to proceed with their application for U.S. permanent residence, and will provide them with the date, time, and location of their immigrant visa interview.

For general information about the annual Diversity Visa Lottery, please visit the Department of State’s website.

© Jewell & Associates, PC 2011

All Countries Relieved from NSEERS Compliance

As of April 28, 2011, all countries that were designated as part of the National Security Entry-Exit Registration System (NSEERS) have been relieved of compliance and removed from the NSEERS list.  Accordingly, nationals and citizens of Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, the United Arab Emirates, and Yemen are no longer subject to the NSEERS registration requirements.

Update on Adjustment of Status Portability under AC21

Under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), a foreign national who has an approved I-140 petition and whose Adjustment of Status application has been filed and has remained unadjudicated for 180 days or more may accept a job with a new employer, or accept a different job with the same employer, as long as the new job is in the same or a similar occupational classification as the job for which the I-140 petition was originally filed.  This ability to move between the same or similar positions is referred to “portability.”