A judge for the Board of Alien Labor Certification Appeals (BALCA) recently ruled on an interesting case related to the burden employers face trying to prove the hardship related to training a new employee. It is yet another instance where experienced representation must be present when maneuvering the permanent labor certification (PERM) process. Background In…
Ten months after the release of the Neufeld Memo focusing on the employer-employee relationship aspect of the H-1B petition, the U.S. Citizen and Immigration Services (USCIS) appears to have retreated to a more reasonable interpretation of the common law relationship. Focusing on the correct concept of “Right to Control” rather than the original unsupported position of…
The Specific Vocational Preparation (SVP) system plays a critical part in PERM Labor Certification and is the basis by which DOL may challenge an excessive job requirement by the employer in PERM Labor Certification filings. It is critical to gain a full understanding of the PERM certification in order to understand PERM Labor Certification filing. What…
Good immigration advice is key to making decisions when it comes to any immigration case. Nine years ago Jose Padilla, a Honduran-born Vietnam veteran who had lived in the United States legally for four decades, asked his attorney if pleading guilty to a drug charge would impact his immigration status. The lawyer told Padilla it…
The Department of State (DOS) has recently confirmed the commencement of its independent verification of information contained in visa applications. Shihab Burke, LLC, Attorneys At Law also confirms that some of its clients have been contacted by the Kentucky Consular Center (KCC) via contractors by telephone as part of the process. Intrusive Verification Questions However,…
This is the conclusion of the four-part blog series that detailed a lawsuit which was filed in the District of Columbia Federal court challenging the new H-1B Neufeld Memo. The first three blogs discussed the complaint that was filed in court, the motion for preliminary injunction that was filed by the Plaintiffs, and the response…
If the employer has a drug and criminal background screening policy that they place in the PERM Labor Certification advertisement, they must also include this requirement in the PERM Labor Certification application form ETA 9089, BALCA ruled. If this is not done, the Certifying Officer (CO) will conclude that the foreign national is being offered…
Generally in response to a Department of Labor PERM Labor Certification audit, the employer must provide specific documents that show that the proper recruitment steps were followed. If certain supporting documentation is missing, the Certifying Officer (CO) may deny certification, unless the attorney can show that the recruitment steps were actually followed and not including the supporting…
If the newspaper advertisement being used for a PERM Labor Certification contains language that certain requirements are “preferred,” the certifying office (CO) officer will properly assume that “employer preferences are actually job requirements.” Unless these requirements are included in the PERM application, the CO will properly deny the application. An example of this issue is…
When the employer is unable to provide adequate documentation of its internet advertisement due to internal company error, the Certifying Officer (CO) can properly deny an application for Labor Certification. One such example is a PERM Labor Certification filed by Trans Atlantic Systems, Inc. (TAS). Background On July 16, 2007 TAS filed an Application for…