Publications

February 2005

LABOR CERTIFICATIONS, BACKLOG RELIEF

On December 27, 2004, the Department of Labor published new Electronic Review Regulations (PERM) to expedite processing. The new system allows employers to recruit before filing their applications. Documentation of recruitment effort is no longer required at the time of filing.

At a minimum, a job placement order must appear for two Sundays in a newspaper of general circulation. No later than 180 days and no earlier than in 30 days, the Labor Certification Application may be filed. A Certifying officer of the Labor Department (CO) will not supervise the recruitment procedure unless the Department of Labor has reason to believe recruitment has not been in good faith.

If an application is properly filed, the application will be certified for the employer. The employer may then sign the certified application and submit it to the Department of Homeland Security (DHS) in support of a petition for a preference (I-140). The entire process is expected to take between 45 to 60 days. By contrast applications for Labor Certifications heretofore filed before April 30, 2001, have taken almost 3 years, and many have not yet even been adjudicated.

The employer will need to retain the supporting documentation for each application for five years.

For professionals, an employer must show it has an employee referral program; that a notice of a job opening has been sent to a campus placement office, if the job requires a degree but no experience; that an advertisement has been placed in local and ethnic newspapers, to the extent that they are appropriate for the job opportunity; as well as appropriate radio and television advertisement placements.

The amount of a wage offer need not be placed in the advertisement. An employer must still demonstrate that the job requirements bear a reasonable relationship to the occupation for the employer’s business.

A foreign language cannot be included as a job requirement unless it is justified by business necessity. The need to communicate with co-workers would be a factor in justifying business necessity, and safety factors also justify a business necessity.

EXTRAORDINARY ABILITY VISAS

O-1 visas are issued for aliens (1) of extraordinary ability in the sciences, arts, education, business, or athletics, or (2) who have a demonstrated record of extraordinary achievement in the motion picture or television industry. O-2s are for aliens coming to the U.S. to accompany or assist an O-1 performer or athlete. Alien spouse and children of an O-1 or O-2 may be classified as O-3 nonimmigrants. O-1 aliens must be coming to the U.S. to work in their area of extraordinary ability.

Petitions for O nonimmigrant classification must be filed by each U.S. employer for whom the O-1 nonimmigrant will work, unless the nonimmigrant’s occupation is normally for a self-employed person, in which case the alien may use his/her agent as the employer.

To qualify in the sciences, education, business or athletes, the O-1 must have received a major internationally-recognized award, or at least have three of the following accomplishments: (1) a national or internationally recognized prize or award for excellence in the field; (2) membership association requiring outstanding achievements as judged by national or international experts; (3) published material in professional or major trade publications or major media concerning work in the field; (4) participation individually or on a panel judging the work of others in the field; (5) scientific, scholarly, or business-related contributions of major significance; (6) authorship of scholarly articles in professional journals or other major media; (7) employment in a critical or essential capacity for organizations that have a distinguished reputation; (8) high salary or other remuneration; or (9) other comparable evidence.

To prove extraordinary ability in the arts, the alien must either have been nominated for or received a significant national or international award or prize, or must show at least three of the following: (1) performance of a lead, or critical role for an organization or establishment of a distinguished reputation; (2) a record of major commercial or critically acclaimed success; (3) significant recognition for achievements from organizations, critics, or other recognized experts in the field; (4) receipt of high salary or other remuneration for services as compared to others in the field; or (5) other comparable evidence.

TRAVEL TIPS, FOREIGN STUDENTS AND EXCHANGE VISITORS

The Department of Homeland Security (DHS), on January 4, 2005, issued travel tips for foreign students and exchange visitors in the Student Exchange and Visitor Information System (SEVIS).

SEVIS is a web-based program that maintains information on international students (F/M visas) and exchange visitors (J visas).

DHS offers the following recommendations for entry:

1. Carry:

a. Your passport;
b. Your SEVIS [Certificate of Eligibility for Nonimmigrant Student Status] Form I-20 or [Certificate of Exchange Visitor Status] DS-2019;
c. Evidence of financial resources;
d. Evidence of student or exchange visitor status, such as tuition receipts, transcripts or letter of acceptance;
e. Paper receipt for the SEVIS fee; and
f. The name and contact information of your designated school official or sponsor.

If you are a new student or a new exchange visitor, carry your sealed envelope given by the U.S. Department of State’s Consular Officer – attached to your passport. Do not open the envelope.

2. Report to your school or program upon arrival so that your school official can validate your participation in SEVIS.

3. Maintain contact with your designated school or sponsor during your stay.

The Department of State and the Department of Homeland Security appear now to be attempting to reverse the recent trend to impose rigid security standards on students, who have not in the main represented security concerns.

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New York Immigration Lawyers > Immigration Publications > January 2005