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News This Week
Week of April 26, 2009

CA7 Finds Company's Taxes Are Not Reliable Basis for Determining whether It Can Afford Employee
The court affirms the denial of the petition, distinguishing between accounting entities and cash flow in addressing the employer's ability to pay the prevailing wage. It notes that an employer's tax returns are not a reliable basis for determining whether it can afford to hire the employee (Construction and Design Co. v. USCIS, 4/21/09).

Supreme Court Holds that Traditional Stay Factors Govern Authority to Stay Removal
The Supreme Court vacates and remands. Holds that traditional stay factors, not the 8 U. S. C. §1252(f)(2) standard, govern a court of appeals' authority to stay an alien's removal pending judicial review. (Nken v. Holder, 4/22/09).

BALCA Holds Certification Cannot be Denied for Lack of Kellogg Language

BALCA vacates and orders certification of a PERM application for a Computer Systems Analyst. Concludes case is governed by Federal Insurance Co., which held that certification could not be denied based on the failure to write the Kellogg language on the ETA 9089. Matter of Kpit Infosystems Inc., 2009-PER-00075 (2/25/09).

DOL Round 1 FAQs on the H-2B Final Rule

DOL released the first round of FAQs on H-2Bs following the new regulations, which took effect 1/18/09. The FAQs deal with the new forms ETA-9141 and ETA-9142, including where to find the NAICS and SOC codes, and where and when to file.

BALCA Finds Job Order Was Not Long Enough in Duration, Employer Unable to Cure Defect
BALCA upholds the denial of the PERM application finding that the employer's placement of a job order after the denial determination could be used to support a new application but could not cure the defect in the case at hand. Matter of JJR Mexican Grill, Inc., 2008-PER-00132 (1/5/09).  

BALCA Finds There is No "On-the-Job-Site-Hire" Exception to PERM Requirements
BALCA upholds the denial of a PERM application for failure to complete several sections of the 9089. Employer argued that reason for failure to provide a start date for the job order and failure to run Sunday print advertisements was that "This was an on-the-job-site hire." Matter of Franco's Construction, 2008-PER-00128 (1/6/09).

CA7   Week of April 11, 2009

USCIS Updates Count of FY2010 H-1B Petition Filings
On 4/9/09 USCIS announced an updated count of the number of fiscal year 2010 H-1B filings that it has received.


SEVP Policy Guidance for DSOs on the OPT Extension
On April 6, 2009, ICE/SEVP issued Policy Guidance to DSOs of SEVP-certified schools. The guidance relates to methods that the SEVP staff considers acceptable for implementation to F and M nonimmigrants, techniques the SEVP staff uses and data the SEVP staff needs to review student issues.

USCIS Final Rule on Asylum Application Processing
Final rule amending USCIS regulations to alter the process by which it forwards Form I-589, Application for Asylum and Withholding of Removal, to DOS. 

No Equitable Relief for Employer who Failed to Recruit or File Application within PWD Validity Period
BALCA affirms denial of PERM application as the employer did not conform with the regulatory requirement to conduct the recruitment or file the application within the validity period of the SWA prevailing wage determination. BALCA did not find that equitable relief was warranted. 

BALCA Upholds Denial, Employer Misinterpreted 30 Day Requirement
BALCA finds that the Employer violated the regulation by filing its PERM application less than 30 days after the SWA job order ended. Notes it is not sufficient that the 30 day duration of the SWA job order ended prior to filing the application.

Earlier weeks:

Week of
December 22, 2008
  •  USCIS, DOL, & CBP Issue New H-2A Regulations 

On December 18, 2008, USCIS, DOL, and CBP published rules affecting H-2A temporary and seasonal agricultural workers and their U.S. employers. The USCIS rule establishes the petition process for H-2A non-immigrants. The DOL regulations cover a revised Labor Certification process for H-2A applicants, and the CBP Notice establishes a new land-border exit system for H-2A non-immigrants.


~ USCIS Final Rule on Changes Affecting H-2A Nonimmigrants

~ USCIS Update and Q&As on Release of H-2A Final Rule

~ USCIS Notice Designating Countries Eligible for H-2A Program Participation

~ USCIS Notice on Reporting Hired H-2A Workers, Prohibited Fee Payments


~ DOL H-2A Final Rule


~CBP Notice on H-2A Visa Exit Program Pilot  

 On December 17, 2008, DHS published a final rule amending its regulations governing the types of acceptable identity and employment authorization documents and receipts that employees may present to their employers for completion of the Form I-9, Employment Eligibility Verification. Additionally, USCIS published a new I-9 form. Comments are due February 2, 2009.

~ Read the USCIS Press Release and Q & As on the new I-9 requirements

 On December 18, 2008, DHS issued an Advance Copy of a final rule expanding the population of those subject to US-VISIT requirements to include lawful permanent residents. 

On November 7, 2008, NBC answered questions on the following issues: N-400 Processing, INA section 319(b) exceptions to residence/physical presence requirements to naturalize, expedited N-400s under INA sections 316 and 319(a); filing address for G-28 change of address and RFE responses, RFEs in I-817 cases, NBC deliveries on Saturdays, and NBC jurisdiction over Form I-90.

 Summary of the December 4, 2008, stakeholders conference call on the EB-5 investor program. A list of regional centers follows.

On December 18, 2008, EOIR published a final rule amending regulations regarding voluntary departure, the effect of motions to reopen and reconsider, and petitions for review on voluntary departure and voluntary departure bonds.

Week of December 13, 2008

On 12/12/08 USCIS announced that it submitted an interim final rule to Federal Register for publication, which amends the I-9 process by eliminating certain items from List A and making other technical changes.

DOS released the January 2009 Visa Bulletin. Section C addresses DV cut-offs to apply in February, and Section D addresses translator visas.

On 12/8/08 USCIS released a press release and fact sheet on an interim final rule amending regulations to allow T and U nonimmigrants to adjust status. The press release is also available en en Español. Q&As on permanent resident status for qualifying family members of U visa beneficiaries follow.

A 12/11/08 USCIS Update announces that the agency has finalized changes to H-2A regulations. The final rule is forthcoming.

On 12/5/08 the CIS Ombudsman released a recommendation urging the prioritization of Schedule A nurse applications, and their centralization at one designated USCIS service center.

DOS published a proposed rule to amend Exchange Visitor Program (EVP) regulations to provide greater specificity regarding program administration, sponsor obligations and participant eligibility. Comments are due in 60 days. (73 FR 75015, 12/10/08).

On 12/8/08 DOS announced that the U.S. Embassy in Baghdad will soon begin processing immigrant visas.

A 12/2/08 USCIS memo from Donald Neufeld, Acting Associate Director, Domestic Operations Directorate, USCIS, and Rendell Jones, Chief Financial Officer, USCIS, describes the process that will be used by Service Center Operations (SCOPS) to ship N-400/G-28 forms to the two lockbox locations.

DOL published a notice announcing that it will offer at least two public briefings on using the re-engineered H-2A Temporary Agricultural Labor Certification Program. Registration information for two briefings, currently scheduled for mid-December in Atlanta and Denver, is provided. (73 FR 74197, 12/5/08).

The VSC Liaison Committee offers guidance for when a B-1/B-2 extension is approved, but the processing time took so long that the Beneficiary was already unlawfully present.

Week of December 6, 2008

The Department of State released a November 2008 cable on the nonminister special immigrant program extension advising consular posts that the sunset date was extended to March 6, 2009. 
It is possible to file a new I-140 petition more than 180 days after the underlying labor certification has been approved if the labor certification was used as the basis for another I-140 by the same sponsoring employer (or its successor-in-interest) and same beneficiary that was filed within the 180 day validity period.
The VSC Liaison Committee provides clarification on the Neufeld Memo regarding H-1B extensions beyond six years.

Q&As from the October 30, 2008, CIS Ombudsman's teleconference on biological   relationship testing address RFEs, AABB-accredited labs, overseas tests, refugee DNA tests, and more.  

Week of November 29, 2008

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