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Employment-Based Immigration: Keeping Up with New Decisions

Time has a tendency to creep by in the practice of immigration law. Applications and petitions are submitted and months pass without any indication of progress by USCIS. Forms are filed online with the Department of Labor (DOL) and don't resurface for weeks. Appeals with the Board of Immigration Appeals don't even have an average time frame, and I swear the National Visa Center is entirely staffed by one hapless soul who literally swims through IV Applications and original birth certificates just to reach his desk each morning. (Where the phone is, I have no idea.)

In this type of environment, every Request for Additional Evidence and Audit slows down a process that could already be measured in eras. Sometimes there is nothing that can be done to avoid these: Forms I-693 can expire and the DOL conducts random audits. But other times, the strictest compliance with statutory regulations and recent decisions can save considerable time and heartache later. It is always better to be proactive as opposed to reactive.

When filing PERM requests (and some H-1B applications), the recruiting process is controlled by the C.F.R. regulations and it has been left to the DOL to decide whether each recruitment procedure has been satisfied. Under PERM regulations, the employer bears the burden to establish eligibility for labor certification. Cathay Carpet Mills, Inc., 1987-INA-161 (Dec. 7, 1988) (en banc). After an audit request, one can avoid denials by the Certifying Officer and the Board of Alien Labor Certification Appeals (BALCA) if the employer can prove, beyond a shadow of a doubt, that every recruiting step was done "by the book."

I am currently in the final stages of recruiting for of two different PERM requests. About a week into the process, BALCA issued a new decision, In the Matters of Tera Technologies, Inc. and USA Wool, Inc., 2011-PER-02541; 2012-PER-00055 (Aug. 28, 2014) (en banc). This decision centered on the Notice of Filing requirements under 20 C.F.R. § 656.1(d) and overruled the previous BALCA decisions Stone Tech Fabrication, 2008-PER-187 (Jan. 5, 2009) and Direct Meds, Inc., 2009-PER-319 (Mar. 3, 2010). BALCA upheld the denial of the Certifying Officer's decision that the Notices of Filing were insufficient. They cited In the Matter of Alexandria Granite & Marble, 2009-PER-00373 (May 26, 2010) stating that the regulations require an applicant to strictly adhere to the rigorous regulatory requirements even though the Stone Tech and Direct Meds decisions had relaxed that mandate earlier.

In light of this new decision, I stopped to review the Notice of Filings that were hanging on the wall for my clients, instead of taking for granted that this new decision would have no effect on my own recruitment process. To my knowledge, Fayad Law, P.C. has never received a denial for its clients due to an improper Notice of Filing. But our templates for the Notice of Filing had been totally revised under the Stone Tech and Direct Meds decisions in 2009-2010. Honestly, I do not know if the fact that my client's notices had been posted before this new decision was issued would have excused us or not if we were audited. And honestly, I did not care. In the slow-moving immigration world, I do not have time to make that argument after a Certifying Officer denial, and neither do my clients. I immediately revised the template and created new notices that were completely in line with the new BALCA decision, had my clients hang them in the appropriate location, and send me photographic evidence. Obviously I cannot guarantee any final outcome for these PERM requests, but one thing I can say for sure is that the Notices of Filing were in strict accordance with the BALCA decision that was issued in the middle of my recruiting process.

I cannot stress enough how important it is to read every new decision that is issued by the Board of Immigration Appeals, BALCA, and all federal courts. They are called precedent decisions for a reason. Under our British-inspired common law system, each court decision changes how the law is interpreted and applied. What was working yesterday may not work tomorrow. Between the Department of Labor and Board of Immigration Appeals decisions, the eleven federal court circuits and the Supreme Court, USCIS and other agency policy memoranda, and my own daily work for my clients it can be a lot to stay abreast of all the changes. But if I do not stop to read every new case, I may find myself in a very embarrassing situation having to explain to my clients and my superiors why I am using outdated law to guide my actions. And that absolutely cannot happen.

So I better get back to reading…

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