Immigration News & Analysis, Maggio & Kattar’s electronic immigration newsletter, offers up-to-date information and insightful commentary on U.S. immigration law and policy. Immigration News & Analysis is published monthly in an electronic format and is available via e-mail. Subscribe to Immigration News & Analysis.
Labor Certification Update
The Department of Labor (DOL) recently advised that 99% of all backlogged labor certification cases have been adjudicated and that remaining cases are expected to be completed by the end of this month. DOL also advised that beginning in February 2008, it expects to review cases more thoroughly both in terms of recruitment and for possible fraud.
Employers and employees are reminded to review labor certifications that were certified prior to July 16, 2007 for which a visa petition has not yet been filed. Under rules that went into effect in July, labor certification applications certified prior to July 16, 2007 expire 180 days after July 16, 2007, or on January 12, 2008, unless filed with the USCIS prior to January 12, 2008 with an I-140, Immigrant Petition for Alien Worker.
For those who are interested in DOL case law trends, the Board of Alien Labor Certification Appeals (BALCA) recently addressed a number of issues in three binding decisions. These cases highlight issues that should be affirmatively addressed when preparing labor certifications. In one case, BALCA instructed that the so-called “Kellogg” doctrine governs PERM labor certification applications where employers indicates both primary and alternative minimum requirements for the job offered and the foreign national lacks the primary requirements. Kellogg instructs that specific language indicating that any suitable combination of education, training or experience is acceptable to the employer must be included in the labor certification application where the foreign national does not meet the primary job requirements and qualifies for the job only through the alternative requirements listed in the application. In this recent case, BALCA affirmed that a labor certification application is properly denied where the application involves a foreign national qualifying for the position under job alternative requirements, and where the specific language required under Kellogg is not included in the application. Picky, perhaps, but nevertheless important.
In another case, BALCA ruled that a labor certification application was properly denied where the Labor certification application contained a typographical error inadvertently omitting the period of experience required for the position, even though the advertising clearly showed the period of experience required. BALCA ruled that the request for correction of the omission should have been made at the time when a motion to reconsider could have been filed with the Certifying Officer, and would not be considered when the case was on appeal.
In a third case, BALCA held that the appropriate Certifying Office required to be to listed on the Notices of Filing postings must be the one with jurisdiction over the state or territory for the area of intended employment. Failure to include the correct address on the Notice of Filing under PERM will result in denial, with extremely narrow exceptions.