Department of Labor Extends RIR Conversion Deadline

On October 6, 2006, the Department of Labor (DOL) published a Notice in theFederal Register which extends the cut-off date for RIR conversions. Previously, apre-PERM labor certification filed under the traditional process could beconverted to RIR only if it was filed prior to August 3, 2001. According to theFederal Register Notice, however, any traditional labor certification filed prior toMarch 28, 2005 (the implementation date of PERM) can now be converted toRIR.

With a traditional labor certification, DOL directs recruitment and specifies thelocation and duration of all advertisements. Under RIR, on the other hand, theemployer need only submit evidence that it has conducted a good faith “patternof recruitment” within the 180 days preceding the filing of the application. Theprocessing for RIR is quicker and often much cheaper for the employer.

To request conversion of a pending case that was filed under the traditionalprocedure, an employer would need to conduct the recruitment. Once therecruitment is done, the RIR conversion request needs to be filed with theBacklog Elimination Center where the traditional labor certification application ispending, along with evidence of the recruitment. The request should be pairedwith the pending application and the application should be considered for RIRwhen it is ready to be adjudicated.

RIR cannot be requested on any application for which the Department of Laborhas already begun directing recruitment under the traditional procedure. Thiscould potentially create a problem for some cases because recruitment must beconducted prior to filing an RIR conversion request. Thus if DOL begins directingrecruitment under the traditional procedure after an employer begins its ownrecruitment for the RIR request, but before the employer completes and files theRIR conversion request, any recruitment already done by the employer up to thatpoint will be a loss, and the employer will still need to follow the Department ofLabor’s recruitment schedule.

USCIS Expands Premium Processing to Additional I-140 Categories

As reported previously in Immigration Newswire, USCIS made premiumprocessing available to most I-140 third preference petitions (excluding the"other worker" category) in August. As of September 25, 2006, PremiumProcessing is now also available for Employment-Based First Preference (EB1)Outstanding Professors and Researchers; Employment-Based Second Preference(EB2) members of the professions with advanced degrees or exceptional ability not seeking a National Interest Waiver; and Employment-Based ThirdPreference "Other Workers" (i.e., unskilled labor requiring less than two years oftraining or experience).

Premium Processing remains unavailable for the following categories: EB1 Alienswith Extraordinary Ability; EB1 Multinational Executives and Managers; andEB2 National Interest Waivers.

Highlights from Customs & Border Protection Meeting

In a recent meeting with the American Immigration Lawyers Association,Customs & Border Protection (CBP) provided helpful guidance on a couple ofissues:

1.) When a beneficiary of a timely filed petition for extension of stay leaves theU.S. while the extension is pending, the person should take copies of thefollowing to present to show when returning to the U.S.:

a.) Prior I-797 Approval Notice;

b.) Current I-797 Receipt Notice;

c.) Current I-94; and

d.) Employment verification letter, verifying current employment (if for anemployment-authorized status).

This will demonstrate that the request for extension of stay was timely filed (i.e.the receipt notice shows a filing date earlier than the expiration date on theprevious approval notice); and that the beneficiary is therefore in a period of stayauthorized by the Attorney General rather than unlawfully present in the U.S.

2.) For Canadian citizens who enter the U.S. in L-1 status pursuant to anadjudication at the Port of Entry, the $500 Fraud Prevention & Detection Feeshould be collected only upon the first admission following implementation of theL-1 Visa Reform Act of 2004. CBP has stated that it will annotate I-94 cards with"fraud fee collected" so that L-1 beneficiaries are not charged the fee twice. Forthose L-1 holders who have paid the $500 fee but whose I-94 cards have not beenannotated, they should bring proof (such as a receipt) to the border when theyapply for extension of their L-1 status.

USCIS Paying Increased Attention To Status Violations When Adjudicating Applications for Immigration Benefits

On May 3, 2006,USCIS issued a memorandum providing internal guidance onexercising discretion to issue Notices to Appear to aliens applying forimmigration benefits.Notices to Appear constitute initiation of RemovalProceedings. In addition, public statements by USCIS officials are payingincreased attention to the inherent authority of USCIS to issue Notices To Appearwhen adjudicating applications for benefits, particularly in the context of filing afamily-based immigrant (I-130) petition where the alien beneficiary is not instatus. It is expected that USCIS will be increasing the number of NTAs it issues.

Department of Labor Confronts the Board of Alien Labor Certification Appeals' First Decision on a PERM Case in Matter of HealthAmerica

On July 18, 2006, the Board of Alien Labor Certification Appeals (BALCA) madeits first ruling on a PERM case. Matter of HealthAmerica, BALCA Case No: 2006-PER-1, dealt with a PERM application that was denied due solely to the fact thatthe employer had mistakenly typed the date of one of the required Sundayadvertisements as having occurred on a Monday. Even though the employercould provide newspaper tear sheets showing that the ad had actually run on aSunday rather than a Monday, the Certifying Officer refused to reconsider thedenial.

The Board held that it is an abuse of discretion for a Certifying Officer to denyreconsideration to a case where (1) the documents retained by the employer aspart of the recordkeeping requirements under PERM clearly show that theemployer complied with the PERM advertising requirements; and (2) theapplication was denied solely on the basis of a typographical error in the FormETA-9089. Moreover, the decision states that in a case where an employercomplies with the regulation in question but “merely made a typographical errorin filling out the application,” there is “[o]bviously ... no motive to deceive ordefraud the government.” BALCA went on to state that the Certifying Officer’s“denial of the application based on the typographical error in the form 9089elevates form over substance.”

This decision has been difficult for the Department of Labor (DOL) to implement.On the one hand, the PERM program did away with BALCA's ability to remand adenied labor certification application to the Certifying Officer for reconsideration.On the other hand, Matter of HealthAmerica states that a Certifying Officer maynot deny a motion to reconsider that is meant to correct a technical error on anautomatically denied PERM application. Matter of HealthAmerica thus made avery technical distinction between BALCA "remanding" a case to DOL andreversing DOL's denial of a motion to reconsider.

In the American Immigration Lawyers Association's September 12, 2006 liaisonmeeting with the Department of Labor, the DOL stated it is still working on howto modify the PERM system to implement HealthAmerica. In the meantime,employers may continue to file Motions to Reconsider where they receiveerroneous denials, and in light of HealthAmerica, DOL will favorably considermotions involving technical or harmless errors. DOL has not defined what itconsiders to be a harmless error.

Vermont Service Center Comments on Future Bispecialization Plans

During the September 20, 2006 meeting between the American ImmigrationLawyers Association and the Vermont Service Center (VSC), the VSC stated thatthe tentative plan for the next phase of bispecialization (which is subject tochange), is that all I-129 petitions will no longer be filed with the Vermont ServiceCenter. Instead these filings will be divided between California and Vermont,based on the geographic location of the employment. Petitions that would havebeen filed with either the California or the Nebraska Service Center will be filed atthe California Service Center; and petitions previously filed with the Vermont orthe Texas Service Centers will be filed a the Vermont Service Center.

Similarly, I-140s and I-485s that would have previously been filed with theCalifornia or the Nebraska Service Centers will be filed at the Nebraska ServiceCenter; and I-140s and I-485s that were previously filed with the Vermont orTexas Service Centers will be filed at the Texas Service Center.

I-130 petitions will be added to the groupings as well, and all I-130s that wouldpreviously have been filed with the California or Nebraska Service Centers willfile them in California; and all I-130 petitions that would have been filed with theVermont or Texas Service Centers will be filed in Vermont.

There will be some exceptions to this scheme; e.g. all I-360 and I-129 petitionsfor R-1 status will be filed with the California Service Center.The Vermont Service Center did not state the exact date when these changes,which are only tentative, may go into effect. However, they anticipate that thechanges will take place prior to January 1, 2007.