| May 10, 2011 |
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DOL wants to limit employer's ability to obtain accurate prevailing wages: "An employer that receives more than one PWD based on variations of its minimum job requirements must abide by the higher wage."
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| Posted By Ricky Malik |
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Why the higher and not the lower? Was not that clearly explained in holding below:
TAKE SOLUTIONS v PAWAR SANDESH 2010PER00907 (APR 28 2011) 083332 CADEC SD
Ricky Malik, Esq.
www.rmlegal.com |
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| April 27, 2011 |
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Defining "Same or similar Occupational classification" for purposes of porting under INA 204(j) and AC 21
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| Posted By Ricky Malik |
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United States Citizenship & Immigration Services (USCIS) released the following Q& A guidance.
USCIS - Questions about Same or Similar Occupational Classifications Under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) |
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| December 03, 2010 |
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Administrative Appeals Office on 204(j) Portability (AC 21)
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| Posted By Ricky Malik |
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- Although section 204(j) of the Immigration and Nationality Act, 8 U.S.C. § 1154(j) (2000), provides that an employment-based immigrant visa petition shall remain valid with respect to a new job if the beneficiary's application for adjustment of status has been filed and remained unadjudicated for 180 days, the petition must have been "valid" to begin with if it is to "remain valid with respect to a new job."
- To be considered "valid" in harmony with related provisions and with the statute as a whole, the petition must have been filed for an alien who is "entitled" to the requested classification and that petition must have been "approved" by a U.S. Citizenship and Immigration Services ("USCIS") officer pursuant to his or her authority under the Act.
- Congress specifically granted USCIS the sole authority to make eligibility determinations for immigrant visa petitions under section 204(b) of the Act.
- An unadjudicated immigrant visa petition is not made "valid" merely through the act of filing the petition with USCIS or through the passage of 180 days.
Ricky Malik, Esq.
www.rmlegal.com |
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| December 01, 2010 |
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AAO on Burden of Proof
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| Posted By Ricky Malik |
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The Administrative Appeals Office published a postive case that addressed burden of proof. Hopefully, USCIS adjudicators will use this case as their guide when deciding cases. In Matter of Chawathe,
25 I&N Dec. 369 (AAO 2010) it was held that:
"In most administrative immigration proceedings, the applicant must prove by a preponderance of evidence that he or she is eligible for the benefit sought.
Even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is "more likely than not" or "probably" true, the applicant has satisfied the standard of proof. Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm'r 1989), followed.
If the director can articulate a material doubt, it is appropriate for the director to either request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, deny the application or petition."
Ricky Malik, Esq.
Twitter: rmlegal |
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| November 16, 2010 |
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BALCA: Screenshot is sufficient as proof for Labor Certification recruitment
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| Posted By Ricky Malik |
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The Board of Alien Labor Certification Appeals (BALCA) finds that a screenshot from the State Workforce Agency (SWA) is sufficient to demonstrate job posting.
Ricky Malik, Esq.
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| November 02, 2010 |
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Dept of Labor posts PERM labor certification FAQ #12
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| Posted By Ricky Malik |
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The U.S. Department of Labor (DOL) published Round 12 of their Frequently Asked Questions (posted below). It was short and appears intended to disallow attorneys or agents to be the point of contact for Employers. Its odd since anytime a person or party is represented by an attorney in all areas of American jurisprudence, the attorney is the point of contact. DOL has historically shown distrust of attorneys and agents, and probably with reason due to many unfortunate instances of immigration fraud.
In June 2008 the DOL famously and aggressively went after the internationally renowned Fragomen law firm to their embarrassment.
Ricky Malik, Esq.
www.rmlegal.com
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| September 22, 2010 |
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No Labor Certification for CEO who has 50% ownership in company
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| Posted By Ricky Malik |
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The Board of Alien Labor Certification Appeals (BALCA) agreed with the certifying officer that the labor certification application for the CEO of a closely held company should be denied, handing down another blow to the concept of the immigrant entrepreneur (Immipreneur).
BALCA relied heavily on its previous decision in Modular Container Systems to affirm the CO's finding that “Wher
e the employer is a closely held corporation or partnership in which the alien has an ownership interest, a presumption exists that influence and control over the job opportunity is such that the job opportunity is not bona fide, i.e., not open and available
to U.S. workers.”
This does not mean that a person closely involved in a company cannot obtain a certification, which is good news. However, the petitioning company "
carries the burden of showing that it has a bona fide job opportunity that is open to all U.S. workers. As the Board found in
Modular Container Systems, Inc
., though it is a difficult task, the sponsoring employer can overcome the
regulatory proscription that self-employment is a per se bar
it if it can establish
“
genuine independence and vitality not dependent on the alien's financial contribution or other contribution indicating self-employment.
”
Id.
at 6
.'
Ricky Malik, Esq.
Attorney at Law
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| August 15, 2010 |
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U.S. Department of Labor releases FAQ 11 for Permanent Labor Certification (PERM)
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| Posted By Ricky |
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The Department of Labor (DOL) released the 11th round of Frequently asked questions for the PERM/Labor Certification Process. A Labor Certification is the first step in the Employment based greencard process. FAQ below:
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| July 11, 2010 |
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U.S. Department of Labor's Administrative Review Board awards H-1B nonimmigrant $304,000 in back wages
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| Posted By Ricky |
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The Department of Labor's Administrative Review Board held an employer liable pursuant to the employer's obligations under the Labor Condition Application (LCA) and the H-1B provisions under the Immigration & Nationality Act (INA).
The employer failed to pay the H-1B beneficiary, even though the employer was obligated pursuant to the LCA.
Conclusion:
1. H-1B Employers must be careful to carefully fulfill their obligations.
2. H-1B Employees should contact a competent attorney if they are concerned about their employers actions.
07_101.LCAP - |
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