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In This Issue

1. AILA Practice Alert: Erroneous H-1B Approval Notices Will Be Corrected
2. Notice of Filing Must Reflect Any Salary Increases
3. United States Unemployment Rate January 2017
4. PERM Processing Times as of January 31, 2017 

1. AILA Practice Alert: Erroneous H-1B Approval Notices Will Be Corrected

The American Immigration Lawyers Association (AILA) issued a February 28th Practice Alert regarding recent USCIS I-797 Notices of Approval for H-1B beneficiaries that were erroneously annotated "1B1" even when the petitions were not filed on behalf of a citizen of Chile or Singapore. According to the alert, "The USCIS California Service Center (SCS) has confirmed that this was a technical error that has now been resolved, and that USCIS will reprint corrected approval notices." The amended notices will be mailed this week and should arrive within 10-14 days.

AILA is also seeking confirmation from Service Center Operations (SCOPS) that the Vermont Service Center (VSC) and the Nebraska Service Center NSC) will be issuing amended notices as well.

 

2. Notice of Filing Must Reflect Any Salary Increases

Employers are required to post a Notice of Filing (NOF) at their workplace for ten business days to advise employees of a job opportunity that is being advertised in connection with a labor certification application. The NOF must include the salary for the position. The decision in The Matter of DVB Transport LLC (December 2016) emphasizes how critical it is to list an accurate wage that is consistent with the wage listed on Form 9089.

In the extant case, the Employer posted an NOF for Financial Managers that listed the wage as $206,000.00 per year. This was lower than the $215,000.00 figure that the employer listed on Form 9089 as the salary offered to the Alien. Advertising a lower wage than that offered to the foreign national violates the regulations at 20 C.F.R. § 656.17(f)(7), which prohibits advertisements from containing “wages or terms and conditions of employment that are less favorable than those offered to the alien.” The regulations at 20 C.F.R. § 656.10(d)(4) explicitly require the NOF to state the rate of pay and to abide by the regulations at § 656.17(f).

The Employer argued that the NOF was posted in December 2012 and accurately reflected the Alien’s rate of pay at that time. By the time the Employer filed the application in May 2013, the Alien had received a performance-based pay raise that increased his annual salary from $206,000.00 to $215,000.00. The Employer listed the higher wage on Form 9089 because that wage was accurate at the time of filing, which resulted in the discrepancy between the salary listed in the application and the previous salary advertised in the NOF.

The Board of Alien Labor Certification Appeals (BALCA) rejected the Employer’s argument and upheld the Certifying Officer’s (CO’s) denial of the application. “The NOF is not a mere technicality,” BALCA stated, “but is an implementation of a statutory notice requirement designed to assist interested persons in providing relevant information to the CO about an employer’s labor certification application.” The Board pointed to previous examples of cases such as St. Jude Children’s Research Hospital (June 2011) and University of Miami (August 2011) where it had also upheld denials on the basis of a discrepancy between the wage listed in the NOF and the wage listed on Form 9089. In the event that a pay raise occurs after the NOF has been posted, the Employer will have to repost the notice with the revised salary in order to be consistent with the wage it reports on Form 9089.

3. United States Unemployment Rate January 2017

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The unemployment rate increased slightly from 4.7% in December to 4.8% in January.

4. PERM Processing Times as of January 31, 2017

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

 

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews December 2016
Audit Reviews June 2016
Reconsideration Requests to the CO December 2016
Gov't Error Reconsiderations Current


The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

About USADWEB
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USADNEWS Volume XI, Issue 2 February 2017

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The USADNEWS Blast is the eNewsletter from USADWEB, LLC, providing updates on immigration ad placement services. This bulletin is not sent unsolicited. The information provided is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of USADWEB's services.
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