PERM and Form over Matter

The filing of a labor certification is like a game. It has all these utterly inconsequential rules. And if you don't dot your I s and cross your T s, it gets denied. This is totally contrary to our doctrine of substance over matter.  This common law doctrine has been in our legal system since ages, but of course, that would require thinking, something that Department of Labor (DOL) employees are not required to do.

And the Board of Alien Labor Certification (BALCA)  over the years has upheld some and denied some of those rules. BALCA has said that if you advertise on a Sunday and by mistake put down a Monday date, that is fine. The court has said its not required to put in "magic language" if you want alternative qualifications. Now the case, World Agape Mission Church has done away with 2 other inane requirements.


The Employer had advertised in the website of the State Workforce Agency. (SWA) But did not have the documentation to prove that during the audit. The Board of Alien Labor Certification (Balca) said that the regulations does not require the Employer to keep such documentation. Most SWAs have crappy websites. I wonder which American would go looking for a job in the SWA database rather than going to Monster or other such engines.

The Employer also does not need to print its name if they advertise in Private Employment Firm.

Other inane requirements still in force: advertise in Sunday newspaper. This is DOL's way of preserving this dinosaur we have called newspapers.  At the rate that newspapers are closing, and at the rate that DOL changes their regulations, the DOL will have that regulations at least 2 years after the last newspaper closes.

 Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

H-1B

Its about that time of the year when the Government will start accepting cap subject H-1B petitions for the Fiscal year 2013, which starts on October 01, 2012. The Obama Administration promised to Silicon Valley recently that they would ease the immigration laws for High Tech graduates.  Yet for small computer consulting companies, the outlook seems bleak.

Computer Consulting Companies specialize in recruiting and placing consultants in bigger companies. Many times one consulting company has contract with another who then in turn has a contract with a big company. This is the nature of their business.  In 2010, the Government in a memo created a new law that the employers should have "Direct control" over their employees. The Government then said that where there are intermediates between the employer and the end user of the employee, the employer does not have control.  The government requires a huge amount of proof and often letters from the end user saying that they don't control the employee. The end users often refuses to bother with such things. After all, if they wanted the hassle of an employee-employer relationship, they would recruit themselves.

The burden on small consulting companies is onerous.  In a recent memo, the Government has said that they don't require any particular type of document, including letters from the end user, but the companies have to prove by a preponderance of evidence that they control the employee. And the Government of course gets to decide whether there is preponderance of evidence. This is like the fox guarding the hen house.  Also very often contracts are given for a short duration, and is thereby extended. But letters from the end user that the contract may be extended is not enough. The Government will make the duration of the H-1B for a few months for the duration of the contract. Then the petitioner has to file again.

If the Government denies an H-1, the beneficiary has to leave the country. An appeal takes forever and is simply not cost efficient for the Petitioner to do.  So the government gets away with whatever they want. So very few of these cases make it to the Judiciary.  In a recent case, Residential Financial Corporation, 2:12-cv00008, the Government challenged whether the Court has jurisdiction since the plaintiff did not ask specifically to get the beneficiary back. The federal Court (Southern District of Ohio) said that the Government did not provide the Employer and employee , "A Bare minimum level of professionalism, diligence and reasoning."


And that is how the H-1B petitions are being adjudicated. Of course getting the visa form a consulate in India is harder and more capricious, but that will take pages and another blog.

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Policy vs Practice

A few days ago, the Director of United States Citizenship and Immigration Service, Mr. Mayorkas said that the United States Citizenship and Immigration Service (USCIS) would make the process for foreign born tech start up companies' immigration easier with the highly touted "Entrepreneur in Residence" Program. The goal he said was to keep foreign born entrepreneurs in the US. Everyone applauded, but it takes years to introduce a new program.  Meanwhile, the existing visas are not available for tech start ups. A start up cannot have H-1B visas, especially is the beneficiary owns part of the business. Bill Gates, if he was an immigrant, would not be able to get an H-1B visa, or a Green Card from Microsoft because (a) He didn't have a "Computer Science Degree", (b) He owned Microsoft, and (c) Microsoft as a start up would not have the 'ability to pay' Gates. Same is true for Sergey Brin and google, although Brin did have a Comp Sci degree., or Zuckerberg and Face Book.

If the Government wants to make it easier for Computer Science Graduates from US Universities, it certainly does not look so. Since January 2010, the CIS issued a memo, which introduced an element stating that Employers should have direct control over H-1B employees. That effectively killed the H-1B visa for Computer Consulting industry.

And recently, the Department of Labor has taken to auditing a lot of labor certifications (PERMS) . I can understand the auditing of Perms for jobs not requiring a highly skilled degree. But these audits are done in random and effects everybody.  So we have one hand of the Government stating that we need to keep our tech graduates, and the other hand doing everything to make it harder for them. Maybe someday the Government will work as a cohesive unit.


ContactHouston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information