Passports Required for All Air Travel to the U.S. Starting January 23, 2007
Starting January 23, 2007, all persons entering the U.S. by air must present apassport, including citizens of the United States, Canada, Mexico, and Bermuda.An additional rule addressing passport requirements for arrivals by land and seawill be published at a later date, pursuant to recommendations made by the 9/11Commission and the Intelligence Reform and Terrorism Prevention Act of 2004.A Media Note with full details is available on the Department of State web site.
PERM Denials Indicate that Any Job Requirements Exceeding the SVP are Not "Normal"
Form ETA-9089, on which PERM applications are submitted electronically to theDepartment of Labor for adjudication by a computer, asks in question H-12: "Arethe job opportunity's requirements normal for the occupation?" The employer orits attorney must answer yes or no. The question is aimed at ascertaining whetherthe employer is requiring more education and/or experience than is normal forthe type of job. If the answer is "yes," the employer must provide documentationto prove that the above-average job requirements are required due to "businessnecessity" rather than due to the employer tailoring the requirements to thealien's qualifications and thereby unlawfully excluding U.S. applicants. But howdoes an employer determine what requirements are "normal" for the occupation?
In the first set of FAQs issued by the Department of Labor on PERM, thequestion was asked, "How do you know if the job description containsrequirements beyond those considered normal for the occupation?" The answer?"The job summary specific to the SOC/O*NET code and Occupation Titleprovided by the SWA on the prevailing wage determination is considered toidentify the requirements normal to that occupation ... Additionally, if theemployer has not accurately attested on the ETA Form 9089 that there arerequirements not normal to the occupation, the application will be deniedwhether proof of business necessity is available or not."
Our office has taken a very conservative approach to answering question H-12and has answered "no," that the job opportunity's requirements are not normalfor the occupation," if indeed the employer is asking for any education orexperience beyond what is listed as the Standard Vocational Preparation, or SVP,for the occupation in the Department of Labor's occupation manual, the O*NET.
In other words, we have strictly followed the DOL's interpretation of question H-12 as DOL has set it out in the FAQs.
Nevertheless, many attorneys have justifiably taken a less conservative approachto answering question H-12. First, nothing in the wording of question H-12suggests that in answering it, employers are required to adopt the O*NET jobrequirements as the final statement on what are the normal requirements for anoccupation. There are many factors that can reasonably be taken into account todetermine what is a normal requirement for an occupation, including unique jobduties not common throughout the industry. These are real-life considerationsthat cannot be taken into account in a broad, sweeping government survey ofwhat are the average requirements for a given occupation. Second, theDepartment of Labor has not adopted any regulations which interpret themeaning of question H-12 and a set of Frequently Asked Questions published ona government web site is certainly less than binding authority.
Until very recently, the question of what constitutes "normal" requirements foran occupation remained a somewhat open question that was frequently debatedby immigration attorneys. Recently, however, immigration attorneys have begunreporting that their clients' PERM applications were denied for the sole reasonthat they answered "yes" to question H-12, i.e. they stated that the jobopportunity's requirements were normal for the occupation, when in fact theemployer's requirements exceeded the SVP. It appears that the Department ofLabor is following the guidance it established in the unofficial FAQs over a yearago, and will deny cases where an employer states that the employer's jobrequirements are normal for the occupation if in fact the employer'srequirements exceed the SVP for the occupation, regardless of whether theemployer can provide evidence of business necessity.
U.S. Eliminates Nonimmigrant Visa Issuance Fee for All Indian Applicants
Effective immediately, the U.S. has abolished the $50 "reciprocity fee" for Indianvisa applicants, resulting in a 33% reduction in the cost of obtaining a visa. TheMumbai embassy issued a Press Release earlier this month.
As of November 1, 2006, Schedule A visa numbers are unavailable. According tothe December Visa Bulletin,the 50,000 numbers provided under Title V, Section 502 of the REAL ID Act of2005 (Division B of Pub. L. 109-13 enacted May 11, 2005) have all been allocated.Therefore, the “Schedule A Worker” category has become “Unavailable” forDecember.Because Schedule A numbers were a special legislative set aside for certain healthcare workers, they will be removed from the Visa Bulletin next month. There willbe no more Schedule A category unless new legislation is passed, meaning thatmost nurses will fall in the EB3 category which is severely retrogressed.
Department of Homeland Security Investigations Target Religious Worker Visa Fraud
On November 15, 2006, U.S. Immigration and Customs Enforcement (ICE)published a News Release stating that they had arrested 33 individuals in eightstates and the District of Columbia as part of a religious worker visa fraudscheme. Most of the illegal aliens aided by the scheme were from Pakistan.According to ICE, petitioners in the United States would file false applications forreligious worker visas on behalf of large numbers of illegal aliens, who would inturn pay large fees to file the fraudulent paperwork on their behalf. Many of thosearrested were reportedly gas station attendants, truck drivers, and factoryworkers rather than bona fide religious workers.
These arrests followed an August 2005 "Benefit Fraud Assessment" by the USCISOffice of Fraud Detection and National Security which revealed a high incidenceof fraud in religious worker visa petitions filed with USCIS. USCIS has placednew focus on the issue of fraud in all religious worker applications. We expect tosee increased scrutiny of all R-1 and I-360 petitions as a result. Some members ofthe American Immigration Lawyers Association are reporting that their clientshave received unannounced visits from ICE agents at their places of worship toinvestigate whether the organization is truly a religious organization and whetherthe alien or employer has committed any fraud in the application.
In addition, on November 28, 2006, USCIS published a Public Notice announcing a temporary suspension of the Premium Processing Service for R-1Religious Workers. Premium Processing guarantees adjudication within 15 daysof receipt of a petition in exchange for a $1,000 fee, and has long been availableon R-1 petitions. The Notice states that as a result of the Benefit FraudAssessment conducted in August, there are additional complexities in the R-1adjudication process which make it impossible for USCIS to ensure processingwithin 15 calendar days. The suspension of premium processing will last for aninitial period of six months and may become permanent.
