Volume VIII, Issue 2 February/March 2014

In This Issue
1. H-1B Applications Accepted April 1, 2014, Expected to Reach Cap Early
2. Retention of Dated Web Prints Crucial to Audit Response
3. BALCA Applies Flexible Standards to Documentation of Campus Recruitment
4. United States Unemployment Rate February 2014
5. PERM Processing Times as of February 5, 2014

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1. H-1B Applications Accepted April 1, 2014, Expected to Reach Cap Early

United States Customs and Immigration (USCIS) will begin to accept H-1B visa applications for the 2014 Fiscal Year on April 1, 2014. Under the current legislation, there are only 65,000 visas available, and an additional 20,000 available for advanced degrees. The number of visa applications is expected to greatly exceed that cap. CNBC reported that as many as 160,000 applications are estimated to be submitted this year, according to immigration attorney Marc Klein of Thompson & Knight.

A lottery system is used by USCIS when the number of petitions exceeds the number of applications that may be accepted. The computer-generated lottery system randomly selects the maximum allowable applications for processing from those submitted. Last year, the lottery system was employed for the first time since 2008 when 124,000 applications were received.

Applications with advanced degrees get two opportunities at selection. They are entered into the initial lottery selection for the first 20,000 spots. Those that are not selected have a second chance at a visa and are entered into a general lottery for the remaining 65,000 openings.

There has been debate in Congress over increasing the visa cap. A bipartisan group of senators have proposed raising the cap to 115,000 visas. Critics of the visa program, such as Sen. Charles Grassley (R-Iowa), have introduced additional measures that are intended to reduce fraud within the H-1B visa program.  Since none of these measures have yet been voted into law, they have no effect on the current visa application season.

It is imperative to prepare your application for a timely filing, as this year is expected to be one of the most competitive seasons for the limited number of available visas.

2. Retention of Dated Web Prints Crucial to Audit Response

It is crucial to obtain the necessary documentation required by the Department of Labor (DOL) to confirm the dates of online advertisements. The regulations at 20 C.F.R. § 656.17(e)(1)(ii)(B) and 656.17(e)(1)(ii)(C) require the employer to provide dated pages from the employer’s website and from a job search website to document the use of these additional recruitment methods. The employer must maintain all supporting documentation for five years and be able to provide the documentation upon request in an audit, otherwise the failure to provide the documentation will result in a denial of the labor certification [20 C.F.R. § 656.10(f), 656.17(a)(3), 656.17(e)(1), and 656.20(b)].

The Matter of DGN Technologies, Inc. demonstrates the importance of maintaining proper records. This case was forwarded to the Board of Alien Labor Certification Appeals (BALCA) after the Certifying Officer (CO) denied the employer’s application due to inadequate documentation. The employer had advertised  a professional position on their company website as one of the three additional recruitment steps. The recruitment report that the employer submitted, which was signed by the company president, identified the posting dates as November 30, 2008 to December 30, 2008. However, the copy of the job posting that they provided did not state the posting dates except for an illegible handwritten notation of the date the posting was created.  The CO denied the case because the evidence was insufficient to prove the advertisement was posted for the time period listed in the report.

BALCA discussed the matter and agreed with the CO that insufficient documentation was provided to prove the dates of the web posting.  BALCA noted that in PSI Family Services, Inc. (April 2010) the Board recognized that “[t]he regulations do not preclude an employer from providing documentation of the advertisement posted on its website in a manner other than by submitting dated printouts of the website advertisement.” The DOL FAQs even state that an employer “may provide an affidavit from the official within the employer’s organization responsible for the posting of such occupations on the website attesting, under penalty of perjury, to the posting of the job.” BALCA made certain to note, however, that there is no guarantee that the CO will accept this alternate documentation as adequate proof.

In the case at hand, the date that was written on the posting itself was illegible and no indication was made as to who made the notation. Furthermore, the recruitment report the employer provided did not qualify as an affidavit and did not identify the president as the company official responsible for posting the web advertisement. Therefore, the recruitment report did not satisfy the requirement for adequate documentation, and the denial of the application was upheld.

USADWEB understands the need for a complete audit file in order to document your recruitment advertising steps. Your advertising representative will provide you with dated proofs of the first and last available days for any online advertisements that you place through us.

3. BALCA Applies Flexible Standards to Documentation of Campus Recruitment

In the Matter of Micron Technology, Inc. the Board of Alien Labor Certification Appeals (BALCA) accepted a case for review. The Certifying Officer (CO) had denied the employer’s application based on what it determined to be a lack of adequate documentation of two additional recruitment methods: on-campus recruitment and the use of a campus placement office.

To document its on-campus recruitment at a university job fair, the employer provided a printout from its website advertising its participation in the Iowa State University job fair, including the positions being recruited and the university’s name, dates, times, and location of the event.  The printout also showed that the employer’s webpage about the event came up as a result of a search for Iowa State University. The CO took issue with this documentation, claiming that there was no independent confirmation from the university to prove that the event actually took place. BALCA cited the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(D), which state that on-campus recruiting “can be documented by providing copies of the notification issued or posted by the college’s or university’s placement office.” BALCA accepted the employer’s argument that the use of the word “can” indicates a suggestion of what may be used to document this step, not what must be. BALCA noted that even a notice from the university about the job fair, which the CO was requesting, would not confirm that the employer actually showed up.  Therefore, BALCA concluded that the employer was free to use alternative means to prove their completion of this step, and that the printout provided from the employer’s website was sufficient. 

The CO also rejected email verification from the university as sufficient proof that the position of “Senior Design Verification Engineer” had been posted by its campus placement office. The CO claimed that the email from the university confirming the posting did not include a copy of the notice of the job opportunity that the employer had provided to the placement office. BALCA referred to the regulations at 20 C.F.R. § 656.17(e)(1)(ii)(H), which state “the use of a campus placement office can be documented by providing a copy of the employer’s notice of job opportunity provided to the campus placement office,” noting again that the use of the word “can” indicates a suggestion and not a requirement of the proof that the employer may submit.

Furthermore, the regulations do not specify what must be contained in the notice of the job opportunity.  Department of Labor (DOL) guidance published in the Federal Register (69 Fed. Reg. 77,347 Dec. 27, 2004) explains that advertisements are not required to list every job duty or requirement but only need to “demonstrate a logical nexus between the advertisement and the position listed on the employer’s application….” The Federal Register further states, “An advertisement that includes a descriptive job title, the name of the employer, and the means to contact the employer might be sufficient to apprise potentially qualified applicants of the job opportunity.” BALCA concluded that the email from the campus office demonstrated that a descriptive job title (“Senior Design Verification Engineer”), the name of the employer, and a means to contact the employer were provided to the campus placement office and that the email was therefore satisfactory to prove the employer’s use of this step.

It is interesting to note that the CO had originally denied the employer’s application for two additional reasons, arguing that the advertisements in the newspaper of general circulation and the job search website did not provide a detailed enough job description. Upon a request for reconsideration based on the Federal Register guidance, the CO reversed its decision and accepted the advertisements.  When BALCA reviewed the case, the Board decided that the CO should have applied the Federal Register guidance to the campus placement notice just as it did to the advertisement text in the Sunday newspaper and job search website.

4. United States Unemployment Rate February 2014

The unemployment rates around the country can greatly impact a company's decision to sponsor an application for labor certification. When unemployment rates are high, companies may elect not to proceed with the certification process. Rates can vary by state and industry. There are several states with jobless rates that are well below the national average. Employers in these states may be more available to sponsor employees. USADWEB is providing information on the current unemployment rates as a convenient tool to assist you as you prepare your cases. The Bureau of Labor Statistics report was just released due to a delay from the government shutdown. The unemployment rate decreased again from 6.7% in December to 6.6% in January, however it rose back to 6.7% in February, according to the Bureau of Labor Statistics.

5. PERM Processing Times as of February 5, 2014

PERM processing times are important to you and your clients. Therefore, each month USADWEB is pleased to be able to update you on the current processing times for reviews, audits, and appeals as reported on www.icert.doleta.gov:

PERM Processing Times
Processing Queue Priority Dates
Month Year
Analyst Reviews June 2013
Audits November 2012
Reconsideration Requests to the CO February 2014
Gov't Error Reconsiderations Current

The Office of Foreign Labor Certification (OFLC) is working diligently to reduce the Permanent Labor Certification Program's pending caseload. The dates on the above table reflect the month and year in which applications are now being adjudicated at the Atlanta National Processing Center. If you need assistance with an application that was filed more than 3 months prior to the month posted, you can contact the OFLC Helpdesk at plc.atlanta@dol.gov.

Clients' Comments Corner

We’ve been working with USADWEB for the past two years and their service has been excellent! They are prompt, professional, and have excellent follow through. I would not hesitate to recommend USADWEB to others looking for a reliable advertising agency.

(Rochester, NY)


USADWEB, LLC. is an innovative advertising agency that understands the immigration needs of companies placing recruitment advertising for labor certification cases in PERM, supervised recruitment, and H2B processes. For more than half a decade, we have helped law offices and companies all over the United States meet the Department of Labor's recruiting requirements. Take advantage of our expertise and relationships with publications throughout the country. Our knowledgeable staff has experience placing all forms of recruitment: newspapers, periodicals, journals, internet job search postings, campus recruitment, radio ads, and more. Contact a representative for more information on placing your ads today!

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USADVolume VIII, Issue 2 February/March 2014

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