Last week marked the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs a means to investigate opportunities to start and grow a business in the United States. Called a “new front door for immigrant entrepreneurs” by the White House, this new resource is part of the Entrepreneurs in Residence initiative, and was announced during a visit to MIT’s entrepreneurship center by Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS).
Citizens of Taiwan eligible for Visa Waiver Program from November 1
News Release from Jewell & Associates, PC
Citizens of countries participating in the Visa Waiver Program (VWP) may come to the United States as visitors for business or pleasure without first obtaining visitors’ (B-1 or B-2) visas from U.S. Consulates. They may visit for periods of up to 90 days, provided that they are eligible for admission under applicable law.
Yesterday the Secretary of Homeland Security announced the designation of Taiwan in the VWP. Eligible Taiwan passport holders with ESTA clearance will be able to visit the U.S. without visas from November 1, 2012. There now are 37 VWP countries:
Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, the Republic of Korea, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Taiwan, United Kingdom.
Like other VWP travelers, eligible Taiwan passport holders must apply for advance authorization through the Electronic System for Travel Authorization (ESTA). VWP travelers are not permitted to board a carrier to travel to the U.S. by air or sea unless they have ESTA clearance.
© Jewell & Associates, PC 2012
Reddit General Counsel praises Jewell & Associates’ client service
News Release from Jewell & Associates, PC – September 21, 2012 Jewell & Associates sends a big thank-you to Rebecca Eisenberg, General Counsel at Reddit, for her kind words in a recent Daily Journal interview. When asked which outside counsel she typically works with, Eisenberg replied:
... I actually have a great immigration lawyer at Jewell & Associates. I think Phyllis [Phyllis A. Jewell, the firm’s managing partner] runs a great shop, and she really shows concern for her clients. It’s such a personal thing to do immigration matters, and U.S. laws are so strict and oppressive that she does a lot of nice hand-holding and creative thinking and goes the extra step.
Jewell & Associates is proud to work with such dynamic and exciting clients as Reddit.
Interview extract: “Reddit GC Rebecca Eisenberg moves quickly and expects outside counsel to do the same” (July 9). © Daily Journal 2012
© Jewell & Associates, PC 2012
Two BALCA cases address rejection of U.S. workers in the PERM process
News Release from Jewell & Associates, PC – September 20, 2012 Employers who wish to permanently hire foreign workers through a labor certification-based process must conduct a test of the labor market to ensure that there are not sufficient U.S. workers able, willing, qualified, and available to perform the work for which the alien would be hired. If the labor market test identifies no such U.S. workers, the employer may file a labor certification application (LC) on the foreign worker’s behalf. To ensure the integrity of the labor market test the Department of Labor’s certifying officer (CO) may review the resumes or job applications to ensure that the U.S. workers were rejected only for lawful, job-related reasons. Two recent BALCA decisions will encourage prudent employers not to immediately reject applicants who do not exactly meet the job requirements.
In Kennametal, Inc. 2010-PER-01512 (March 27, 2012) and Goldman Sachs & Co. 2011-PER-01064 (June 8, 2012) both employers were engaged in “supervised recruitment,” but the decisions provide valuable guidance for employers evaluating applications in the course of a “regular” LC process. Both employers filed LCs in which they stated that any suitable combination of education, training or experience would be acceptable for the role in question. Both employers determined that none of the applicants satisfied their minimum requirements. The CO disagreed and denied the applications, finding that U.S. workers had been rejected for other than lawful, job-related reasons.
In both cases BALCA agreed with the CO. It stated that a U.S. worker will be considered able and qualified for a job opportunity if by education, training, experience, or a combination thereof, they are able to perform the duties in a normally acceptable manner. Therefore if a worker’s resume lists such a broad range of experience that there is a reasonable possibility they may meet the job requirements, even if it does not expressly list all of the required qualifications, the burden is on the employer to investigate the applicant’s qualifications further. Therefore Kennametal should have further investigated the qualifications of three applicants who, though they lacked the required bachelor’s degree, had between ten and twenty-four years of experience; and Goldman Sachs’ rejection of one applicant without investigating how his admittedly “significant relevant experience [and] significant education” combined might meet the job requirements was also improper.
Kennametal raised an additional issue. BALCA reiterated the regulatory principle that if a U.S. worker lacks skills necessary to perform the job duties, but can acquire them during a reasonable period of on-the-job training, the employer may not use the applicant’s lack of skills as a lawful, job-related reason to reject him/her. Furthermore, “[a]n employer claiming that applicants will only be qualified if they already possess these skills must substantiate its claims by giving the specific period of time that training would take.” The employer’s rejection of seven applicants because they lacked one of the skills required to perform the role was therefore unlawful. (Interestingly, the CO’s own research into the training available for the skills seemed to play a key role in BALCA's analysis.
Clearly, employers must conduct an in-depth investigation of potentially-qualified applicants' qualifications. An expert opinion in the recruitment report, such as that provided by a professor of finance for Goldman Sachs, is not a substitute. Neither are summary statements, such as the expert’s declaration that an applicant lacking an experience requirement could not perform the job competently, and thus “could not reasonably be assumed to be potentially qualified.” BALCA’s admonition in Dearborn Public Schools 19-INA-222 (Dec. 7, 1993) (en banc) is instructive. “A resume is just that: a summary; an introductory overview highlighting an applicant's background of qualifications. It is not a temple to be worshiped as the fount of all knowledge about an applicant's qualifications.” Indeed, employers should not fear interviewing an applicant: As BALCA said in Goldman, further investigation could have shown that the potentially-qualified applicant’s experience "would not yield a suitable combination.” On the other hand, however, employers might wonder when an interview is not warranted. What if, in response to an advertisement listing the full job description, an applicant with two decades of experience responds with a resume that does not contain any of the skills requirements? May the employer infer that the applicant did not customize their resume to the ad because he or she could not satisfy those requirements? Or must the employer still investigate further? This issue was not raised in Kennametal or Goldman Sachs and so employers will have to continue exercising their judgment on a case-by-case basis, bearing these decisions in mind.
By Christopher Beckerson. © Jewell & Associates, PC 2012
UPDATE: BALCA clarifies 180-day rule, declines to follow GE Energy
News Release from Jewell & Associates, PC – September 19, 2012 Employers and business immigration law practitioners are familiar with the challenge presented by labor market test timelines in the labor certification (LC) process. In a previous blog post we noted the confusion caused in that regard by the 2011 decision of the Board of Alien Labor Certification Appeals (BALCA) in General Electric Company 2010-PER-763. In that case the panel turned the common-sense understanding of the labor market test’s 180-day rule – that all recruitment must be started and completed within the 180 days prior to an LC being filed – on its head by holding that an LC application must be filed “at least 30 days, but no more than 180 days, after the end date of its [State Workforce Agency] job order, not the start date.”
Now a BALCA panel has confirmed our misgivings with General Electric by expressly refusing to follow its reasoning. In Industrial Steel Products 2012-PER-542 the Certifying Officer had denied the LC because the job order was placed more than 180 days prior to the LC filing date, in violation of the regulatory rule that the recruitment steps must be conducted at least 30 days, but no more than 180 days, before the filing of the application. (See 20 C.F.R. § 656.17(e)(2) for nonprofessional positions, as in Industrial Steel; and 656.17(e)(1)(i) for professional positions, as in General Electric.) The employer argued, relying on General Electric, that this 180-day window began on the end date of the SWA job order and so its LC was filed on time.
BALCA affirmed the denial. It noted, as we did, that as recently as Blue Mountain Stone Inc. 2010-PER-481 a panel had explained that the word “conducted” in the regulation, when it relates to 180 days, means that recruitment must begin no more than 180 days prior to the filing, because it becomes stale if too much time passes between it and the filing of the application. The Board also noted that the en banc decision in Karl Storz Endoscopy 2011-PER-40, though focused on the validity dates of a prevailing wage determination, was consistent with Blue Mountain Stone insofar as the Board ruled that “[f]or the purposes of Section 656.17(e) . . . the ‘recruitment period’ refers to the six- month period prior to filing, during which all of an employer’s recruitment must be conducted.”
Industrial Steel therefore puts a confusing episode of BALCA case law to rest, and employers and practitioners can cheer the restoration of a common-sense approach to calculating the labor market test timeline.
By Christopher Beckerson. © Jewell & Associates, PC 2012
U.S. Embassy in India announces new visa processing system
News Release from Jewell & Associates, PC – September 17, 2012 The U.S. Embassy in India is implementing a new visa processing system throughout the country. It will standardize procedures and simplify fee payment and appointment scheduling through a new website, www.ustraveldocs.com.
Applicants will be able to schedule appointments online or by phone. The new system will allow companies and travel agents to purchase multiple fee receipts for group travel, and it accommodates the scheduling of group and emergency appointments.
Under the new system applicants will have to make two appointments. Prior to their visa interviews, applicants will have to visit an Offsite Facilitation Center (OFC) to submit fingerprints and a photo. It is hoped that this will reduce congestion at consular facilities. Most applicants will need to visit an OFC only once.
Beginning September 26 visa applicants will be able to pay application fees by Electronic Fund Transfer, mobile phone, or in cash at a designated bank. Applicants will be able to have their questions answered by phone, email, or online chat. Call center staff will answer questions in Hindi, English, Punjabi, Gujarati, Tamil, or Telugu.
The Department of State hopes that, in conjunction with its Interview Waiver Program introduced in March, some applicants will be able to complete all visa requirements without having to visit a U.S. Embassy or Consulate.
© Jewell & Associates, PC 2012
Priority date predictions from Department of State
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
BALCA overturns denial of labor certification for omission of employer’s name from “private employment firm” recruitment step
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.
Cut-off dates for EB-2 India and China will retrogress to August 15, 2007
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