In our last article, “News at the 2016 AILA Spring Conference on U. S. v. Texas, CSPA, I-601A Proposed Rule and H-1B’s” on April 20, 2016, we said that there were other important subjects covered in the conference that would be the subject of another article. Below are areas discussed by the Labor Department, U.S.C.I.S., and Department of State:

Department of Labor
The Department of Labor complained about lack of funding as affecting its operations and said that Office of Foreign Labor Certification (OFLC) fee based applications were its big hope to alleviate compromised programs, but that it would be about 2-3 years before the fee base became effective to wean it off of appropriations. (This is of course assuming that it receives the authority to charge fees through the rulemaking process). On specific issues:

  • PERM applications had been receiving denials because the labor certification forms were not revealing that the labor certification applicants possessed the experience that was required on the applications even though attorneys were clear that they had filled out the online form correctly and that the experience was on the correct section K of the ETA 9089 PERM application. DOL representatives said that this was not a big problem as there have been only cases in the single digits on a monthly basis; that this was an IT glitch in which persons should file motions to reconsider and show what was submitted at the time; and that it should be a quick adjudication. One of the moderators said that if you catch it at the beginning, e.g. look at each page when you print them out, you can just withdraw and resubmit immediately.
  • PERM denials were not seen as so easily resolvable in situations involving applications requiring a specific amount of experience in the occupation, but in which attendant skills requirements did not contain a time requirement. Practitioners had in the past been able to successfully list on the H-14 skills section of the ETA 9089 form non-quantified job skills required for the position, e.g., 2 years as software developer with “some” experience with C++ and Java, but DOL recently began issuing denials. At the conference on a show of hands, at least 10 acknowledged receiving denials relating to the issue. DOL representatives said that its policy is to evaluate special skills required against the skills of the person and that where employers were doing it this way, there were unclear requirements. They said, however, that the short answer is that DOL is still analyzing the problem; the initial analysis is that some of the logic of the denials is not clear; that DOL is identifying the problems coming forward and wanted to identify all of the denials together so that decisions on reconsideration will be consistent. Also that DOL will consider issuing an FAQ in the area and that they are working to provide a clear version.
  • Neither were PERM denials readily resolvable at the conference where the recruitment advertising for labor certifications included information on compensation which was seemingly innocuous and denials were coming because the words “competitive salary” or like words were used in the ads. DOL representatives said that the policy had not changed and the number of denials is very low. They agreed that no reference to salary is required on anything other than the notice of filing, but that when salary information is provided, it must conform to the labor certification form. By listing a single wage on the 9089 form, they said that employers were saying that the wage was non-negotiable. Going forward, they recommended that practitioners should use a wage range on the ETA 9089 if they insisted on using other types of language for salary on the other forms of recruitment. Upon being asked if DOL would provide an FAQ on the issue, they said that it was time-consuming and were not encouraging.

U.S. Citizenship and Immigration Services
U.S.C.I.S. also complained of a lack of funding impinging on its operations, acknowledging that it has been a struggle, that the number of adjudicators is not up to the volume, that they need more staff and have already allocated much overtime. Much of what was said by U.S.C.I.S. representatives was indefinite as there was no clear answer at the time. The most intriguing indefinite was the palpable suggestion that U.S.C.I.S. could be in favor of using the “filing date chart” instead of the “date for final action” chart in deciding visa availability for both family-based and employment based cases in the month of October, the beginning of the government fiscal year. Donald Neufeld, Associate Director, Service Center Operations, tried to tamp down the enthusiasm by saying that they look at the number of cases in the inventory and if there are more in the inventory than visa numbers available, they will use the final action dates – that only if they plow through the inventory can they use the filing dates – but it did appear that Mr. Neufeld anticipates U.S.C.I.S. using the filing date chart in the October visa bulletin; that he thinks it would only open for a few months at the most and that it would depend on the inventory. If so, that would give great relief to a large number of people who would be able to file I-485 applications for adjustment of status and obtain employment authorization and travel privileges during the time that they would have to wait for the final action date to become available. It should be noted that it was the consensus of AILA attorneys that if the filing date chart was used in October for employment base cases, the window would only be open for filing during that one month.

Department of State:
The most discussed subject was prudential revocations vis-à-vis DUIs (driving under the influence). The negative impact of DUIs had been seen in the earlier panel of U. S. Immigration and Customs Enforcement (ICE) in which an official had said that these were handled case-by-case in exercising discretion, and that they would have to see the factors. When asked the importance of DUIs, the official said that he had been on the Hill (before Congress) 4 times recently on the subject. A prudential revocation occurs where the Department of State suspects an ineligibility or lack of entitlement to the visa. State usually acts when it receives derogatory information from another U. S. government agency, including a member of the intelligence or law enforcement community. The Department becomes aware of arrests and convictions through existing interfaces between the State Department’s and other U. S. government agencies’ electronic databases. Such revocations do not constitute permanent findings of ineligibility, but reflect that after visa issuance, information has surfaced that calls into question the individual’s continued eligibility for a visa. Subjects of prudential revocations are free to reapply and reestablish their eligibility. A policy was begun on 11/5/15 to apply prudential revocations to DUIs occurring within the past 5 years (unless that arrest was already addressed in a visa application) so that even visa holders in the U. S. are having visas prudentially revoked – which action becomes effective on the person’s departure from the U. S. The DUI is not a basis for denying a visa, but for sending the person to a panel physician to see if there are grounds to deny, such as possible physical or mental disorder with associated harmful behavior. In the conference, AILA members complained that clients were receiving letters saying that the people had to return. The Visa Office spokesperson said that they were reviewing the language as the prudential revocation had no bearing on status in the U. S. It was further explained that on a DUI arrest, the focus is on the medical ineligibility, not the crime and that an arrest was enough to have a person before the panel physician. If the visa is prudentially revoked and the person travels to the U. S. on it, the visa would be facially valid, but Customs and Border Protection (CBP) at the port of entry would see that it was invalid.

The above only represents the author’s view of important subjects as there were many ranging across the entire spectrum of immigration law involving other agencies or sub agencies such as CBP, ICE, and U.S.C.I.S.’s Ombudsman’s Office.

This article © 2016 Alan Lee, Esq. Reprinted with permission.
The first part of the article is found here.

About The Author

Alan Lee, Esq. Alan Lee, Esq. the author is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell's Ask-a-Lawyer program. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of "doing business" for multinational executives and managers to gain immigration benefits.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.