Employers Should Always Prepare for PERM Audits

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The Department of Labor (DOL) has been auditing the process for submitting Labor Certifications, called Program Electronic Review Management (PERM). Of a reported more than 20,000 PERM petitions filed since October of last year, approximately 29 percent were chosen at random by the DOL for audit, and some 50 percent of the audited petitions were denied after review by the DOL. The DOL says that it plans to continue the auditing system, looking at 30 percent of petitions pulled at random, as part of a quality and integrity initiative.

As part of the PERM petition, the sponsoring employer completes the recruitment information via an online system and is not required to provide supporting documentation proving that they ran recruitment postings or reviewed applications. The concern by the DOL is that some petitioners may be filing PERM petitions without conducting actual posting and recruitment as required. The DOL has started randomly pulling PERM petitions to audit in an effort to deter and catch potential fraud. Once in audit, the petitioning employer must respond within 30 days, submitting posting and recruitment documents and other documentation as requested by the DOL. A petitioning employer’s failure to respond to an audit means the denial of the petition, as well as disbarment of the employer’s eligibility by DOL for future PERM petitions.

By the end of 2011, DOL audit notices began requesting both standard evidence for postings and recruitment efforts, the resumes from all of the U.S. workers who applied, the employer’s stated reason for rejecting those applications and any records maintained which show the employer’s efforts to contact the applicants. Minor clerical errors, including missed information, incomplete evidence and even typos, may result in a denial of the PERM petition. The PERM petition may also be denied if it is found that an employer did not contact U.S. workers within a certain time frame, rejected an applicant who was deemed qualified or interviewed a qualified applicant and dismissed him without detailing the reasons why.

Employers are advised to prepare any and all PERM petitions with the assumption that it will be audited, adhering to the following guidelines:

  • Advertising, description and posting should all be carefully reviewed to be certain they comply with Department of Labor guidelines and PERM regulations.
  • Stay within strict time frames for screening and interviewing and carefully document reasons for rejection.

The PERM labor certification process is complicated and exacting, and it is wise to work with an experienced attorney to meet all guidelines.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

DREAMers Can Now Apply for Special Deferment Status

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This past July, Less President Obama halted the deportation proceedings for a number of undocumented immigrants and granted them temporary work permits. Called the “DREAMers,” these undocumented people are slated to benefit under the DREAM Act, which would allow the granting of work permits and stop deportation, if certain criteria are met, to those living in the U.S. illegally.

Supporters of the DREAM Act believe the policy is needed to integrate solid citizens into a system of social and economic benefits not currently afforded them and remove the “invisibility” factor of working in the U.S. without documentation. Critics contend that the DREAM Act may produce a systematic amnesty program, encouraging further immigration, inviting fraud and shielding gang members from deportation. However, the DREAM Act has a number of specific criteria that must be met. DREAMers are those who came to the US as children, are currently below the age of 31, do not have a criminal record, are currently attending or have graduated high school or college and/or who have served in the military. Though the Department of Homeland Security estimated that some 800,000 individuals would be affected, the Pew Hispanic Center and the Migration Policy Institute puts the figure at nearly twice that, stating that almost 1.4 million people are affected by the DREAM Act.

While it can be difficult to get accurate numbers on a population of people who may be hesitant to identify as undocumented, it is estimated by the Migration Policy Institute that almost 60 percent, some 800,000, of the people under Obama’s deferred action are currently enrolled in school, from kindergarten through 12th grade. One quarter or some 370,000 of the eligible are high school graduates or hold GED certification. More than 15 percent, roughly 220,000, are enrolled in college or have graduated from college.

The Citizenship and Immigration Service has announced that DREAMers can apply on and after August 15, 2012, the date when they will begin accepting immigrants’ applications for a special deferment status for two years. Under the deferment, they will not receive a green card (a permanent residence card) but will receive a work permit and will not be deported.

Will more DREAMers come forward? It is generally assumed that many people are waiting to see what happens with this upcoming presidential election and how any policy changes would adversely affect them if they self-identify as undocumented without a guaranteed safety net. Presumptive GOP presidential candidate Mitt Romney has announced his own citizenship proposal if elected.

A. Banerjee is a Houston immigration lawyer in Texas. Before selecting an immigration lawyer in Houston Texas, contact the Law Offices of Annie Banerjee by visiting their information filled web site at http://www.visatous.com.

PERM Audits

By | Houston Immigration, Immigration Policy | No Comments

Anyone who is recently filing a PERM-Labor Certification knows that the Department of Labor (DOL) is auditing a significant portion of them. I think this is in response to the financial melt down. Lehman Brothers fell in 2008 starting the financial crisis, but it takes DOL this long, (and right about the time we are going back to solvency) to institute a new policy.  Or maybe the Administration just wants to find work for its top heavy officers.  But for whatever reason, PERM audits have increased.
Those who have filed even one PERM knows that DOL is huge on form rather than substance. (After all this organization still believes in newspapers). You have to dot ever i and cross every t. So use the copy and paste function in your computer.  We draft one advertisement, and then copy and paste it for the ads, the prevailing wage, the notice, everything.
Be sure to say travel required nationally, if thats the case. And yes, you can input it in H-14.  But it is not necessary to input the Kellog magic language.  If you do, watch out for the DOL genie to come back and scrutinize if you have considered people with “suitable combination of education and experience. “
Its especially galling that DOL is asking whether the employer or employee paid for the perm. The employer already has to open their own account with the DOL and sign the attorney in. The DOL e mails the employer and asks about the filing once its done.  Why dont they have a question there asking whether the employer paid for the perm? Or in fact all the salient points. That way you save the hassle and time loss for an audit.  But then, when have Government agencies ever been paid to think.
Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

Race and Immigration

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The civil war abolishing slavery was won in 1865. Yet, race continued to be a factor in American society and legal system until the 1950s.  Blacks were never “equal” in the South until Brown vs. Board of Education was adjudicated in 1954. The history of Immigration law is replete with blatant discrimination against people of race, color and national origin. 
A series of acts were passed from 1882 to 1934 called as Asian Exclusion Act, aimed at excluding immigrants from China, Japan, India and Philippines.  It is actually quite funny how the court system tried to justify these exclusions.  They were of course based on nothing but color.  In Ozawa V United States (1922) the Supreme Court did not want to use the term “white” and exclude all other colors.  So they used the term “Caucasian”.  However people from India are also of Caucasian descent. So Mr. Bhagat Singh Thind from India wanted to be granted Citizenship, the court was forced to use the term “white” and  exclude all other immigrants.  The court rationalized that unlike European “white” people, people from India cannot readily assimilate into the American society. 
I would love to say that was back then, and how far we have gone, but I simply cant. In 1952, the Mc Carran Walter Act abolished the Asian exclusion act, and started accepting Asians, although restricting them on an ethnic quota.  In 1965, the term “ethnic quota” was changed to “National Origin.”  What that means is that if you are an  Asian born in UK you are Ok.   But if you were born in India or China, you have to wait longer than all other people.  And this despite the fact that people from India and China are generally highly educated. 
Asian Americans pay the highest taxes among all ethnic groups. They have the highest SAT scores.  Yet we have very few is any representation in all three branches of the Government. I thought our country was founded upon the principal of  “No taxation without representation.”
Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

Eb-2 Visa Wait Times for India

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The October visa bulletin released recently by the Department of State has retrogressed the Priority Date of the EB-2 petitions for India to September 01. 2004 and for China to July 15, 2007.  A lot of clients are asking whether that means they have to wait forever.  Unfortunately visa numbers don’t go by a clear cut mathematical progression, but rather a probability forecast by the Department of State based on approximation of current petitions pending at the Citizenship and Immigration Service.  
Every country is given the same quota for immigration purposes.  India and China being large countries with an enormous amount of higher educated people, the second employment based quota gets filled up very quickly.  Thus people born in India or China have to wait in line, while people born in other countries get the Green Card (Permanent Resident Card) without any wait. 
The Department of State has projected (and note this is a projection only) that the EB-2 numbers for India will go up to 2010 by Spring of 2013.  Also note that a bill was passed by the Congress overwhelmingly to do away with the per country quota.  It is being held up by one lone Senator, Senator Grassley in the Senate.  That bill will probably not get through until the new administration.  But if that bill ever gets passed, it will cut down the wait times for people born in India.
However, there is no guarantee.  And the pendulum can swing the other way and it might take a lot of years (ie even more than the current wait time of 8 years).  There simply is no way to predict. 
For those people fortunate enough to file the I-485 this spring or earlier, after 180 days of filing,  a new employer can port the sponsorship provided the new job is same and similar.  Another issue is that often, once the Priority Date becomes current, the Citizenship and Immigration Service  simply produces and sends the Green Card (Permanent Resident Card).  They do not check or issue any Request for Evidence. Sometimes beneficiary is not working for that sponsoring Company.  However when such beneficiary tries to get the US Citizenship, they risk the chance of losing their Green Card (Permanent Resident Card).  So please make sure that those portability letters are sent out to Citizenship and Immigration Service with the new employers, and keep a copy of it.
  Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information


By | Houston Immigration, Immigration Policy | No Comments

Last night in his acceptance for the nomination speech at the Democratic National Convention, President Barack Obama said, “You’re the reason a young immigrant who grew up here and went to school here and pledged allegiance to our flag will no longer be deported from the only country she’s ever called home,”   
Yet the Deferred Adjudication for Childhood Arrivals (DACA) has seen less applicants than predicted. There are two reasons for this:
Deferred Action is simply a means for the Government to say, we wont deport you.  But the process is entirely discretionary. ie Each Immigration Judge, or the CIS makes that decision.  
The regulations say that a person will be barred for a “Significant misdemeanor” .  There is no definition of that term.  It probably means that if anyone has just one misdemeanor  for say driving without license, it will be Ok.  But what if someone has 2 misdemeanors? I have been advising clients who have this, to hold off, and see outcomes in other cases. 
The other thing is the outcome of the elections.  DACA is just an executive decision. If Romney gets elected, he can easily stop the program, and even start deporting the dreamers. Thus it is prudent to hold off on filing these applications. 
Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information