Monthly Archives: July 2011


According to  “Representative Luis V. Gutierrez, a Democrat from Illinois who has become a perennial thorn on immigration for President Obama, was arrested Tuesday afternoon along with about a dozen activists in a protest outside the White House.”

This is the second time the Representative Gutierrez has been arrested for a peaceful protest.  The President needs to do more than give lip service to immigration reform if he is to have any advantage over the Republicans for the Latino vote in the upcoming election.  Other than that, his only advantage will be if the Republican candidate shoots him/herself in the foot by taking an aggressive anti-immigration stance.  If the past is any indication, such rhetoric rarely ends well for candidates who go that route.  Realistically however, there is not much chance of any great immigration overhaul until 2013 at the earliest.

When serious immigration reform occurs, and it will have to at some point, the figures who will stand out as having made the biggest contribution will be the late Senator Kennedy and Representative Gutierrez.

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According to a USCIS News Release:  “U.S. Citizenship and Immigration Services (USCIS) today announced the availability of new data reports covering agency performance in a broad range of data  and operational areas. The reports, prepared at the request of agency stakeholders, advance agency efforts to enhance transparency and improve customer service.”

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Anecdotal evidence suggests that the USCIS is often taking more than thirty days to issue receipt notices or deposit checks for I-485 Applications.  It is unclear what is happening or not happening in the mail rooms but needless to say, many “customers” are less than happy with the “service” they are receiving after coughing up some hefty filing fees.

For those who have filed a case and have not yet received a receipt notice from the USCIS, if the filing fee check has been processed, the receipt number should appear on the back of the check.  This allows a filer to check the case status online or call the agency to follow up if necessary.  However, when the USCIS is not even processing the checks but rather just holding the cases, one is left wondering why the agency is adding yet another level of frustration and delay to a process that is already stressful for applicants.

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Those who have been through the PERM labor certification process are aware of how labor-intensive and difficult it can be for employers to complete this usual first step of helping a foreign-national obtain permanent residence through employment.  For a professional position (which is any position requiring at least a bachelor degree), there are three additional recruitment steps in addition to the newspaper ad, posting with the state job bank for thirty days and posting the job opportunity notice for ten consecutive business days at the place of employment that must be undertaken.

It is an expensive and stressful undertaking for the employer as well as for the foreign-national whose green card process depends on the success of the application.  The DOL at times certifies cases fairly fast, sometimes audits cases causing them to remain pending for many months and at times denies cases after audit.  Our firm’s experience and anecdotal evidence suggests that denials are sometimes correct and oftentimes not in accordance with the law which requires employers to request BALCA review or reconsideration by the certifying officer.  This adds many additional months to the process that was designed to streamline labor certification adjudications.

Reasons for denial rarely have to do with the applicants who were rejected or with a genuine belief that a recruitment step has not taken place.  Rather denials are frequently due to a technical mistake or typographical error or a claim that evidence submitted is not what the regulations state it “can” be.  For instance, a letter from a newspaper submitted stating that it ran the internet Help Wanted ad, includes the text of the ad and the dates the ad ran in some instances will be acceptable and in others will lead to the denial of a case stating that a printout of the online ad was required.  The regulations say that such a printout “can” be used as evidence that the job search Website ad was posted.  There is also no requirement in regulations for how long an online ad must run, it could run for one day or thirty.  If an employer chose to run the ad for thirty days, what evidence would be acceptable for the DOL?  A printout from one random day, the first day and last day, or would a printout of each day the ad was posted be required?  The only way one could be sure that the evidence would withstand DOL scrutiny, would be to submit a dated printout for each day the ad was posted in response to an audit.

The lessons?  Dot every “i” and cross every “t” because in this era of “gotcha!” PERM adjudications one can never be too sure of what the DOL will accept as acceptable evidence in response to an audit.  What they accept today they may reject tomorrow and oddly enough, the reverse is true as well.  Also, start the PERM process early if the foreign national is in H-1B status as the ability to extend an H-1B beyond six years is dependent on the PERM application being filed before the beneficiary has been in the US in H-1B status for 5 years.  If an employer files early and a case is wrongly or rightly denied, there is usually time to re-file.  On the other hand, when an employer waits until the last few months before the fifth year in H-1B occurs, this leaves all parties in a precarious situation if the application is denied – rightly or wrongly.

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