BALCA’s “Matter of Sanmina-SCI Corporation”: Clarifying the “Employee Referral Program” recruitment step under PERM

In Matter of Sanmina-SCI Corporation the Board of Alien Labor Certification Appeals (BALCA) found that in order to make the employee referral program recruitment step meaningful, an employer must minimally be able to document that:
  • Its employee referral program offers incentives to employees for referral of candidates;
  • That the employee referral program was in effect during the recruitment effort the employer is relying on to support its labor certification application; and 
  • That the Employer’s employees were on notice of the job opening at issue. 
In this case the employer, Sanmina-SCI Corporation, filed an Application for Permanent Employment Certification on behalf of a foreign national for the position of Software Applications Engineer.  Following an audit, the Certifying Officer denied certification on the grounds that:
  • The Employer’s Notice of Filing was only posted for nine consecutive business days because one of the posting days was Columbus Day;
  • The Employer failed to provide adequate documentation of its employees referral program with incentives. 
BALCA vacated the denial based on the Notice of Filing ground and remanded the case to permit the Employer an opportunity to present evidence as to whether Columbus Day for the Employer was a “business day” consistent with Il Cortile Restaurant, 2010-PER-683 (Oct. 12, 2010).  In Il Cortile Restaurant BALCA held that, for purposes of the Notice of Filing requirement, a “business day” is any day that the employees are working on the premises and can see the Notice of Filing. 
BALCA in this case also reversed the CO’s finding that the Employer had not adequately documented its use of an employee referral program with incentives. In its reasoning BALCA held that the Employer’s documentation was adequate to fulfill the required elements in that the Employer established that it had an employee referral program with incentives, that the program was ongoing during the recruitment for the position at issue, and that the job was advertised within the company. 
BALCA is the administrative appellate body within the U.S. Department of Labor (DOL) consisting of administrative law judges assigned to labor certification matters. As way of background, a permanent labor certification issued by the Department of Labor (DOL) allows an employer to hire a foreign worker to work permanently in the United States. In most instances, before the U.S. employer can submit an immigration petition to the Department of Homeland Security‘s U.S. Citizenship and Immigration Services (USCIS), the employer must obtain an approved labor certification request from the DOL’s Employment and Training Administration (ETA). More specifically, the DOL’s Office of Foreign Labor Certification  (within the ETA) must certify to the USCIS that there are no qualified U.S. workers able, willing, qualified and available to accept the job at the prevailing wage for that occupation in the area of intended employment and that employment of the foreign national will not adversely affect the wages and working conditions of similarly employed U.S. workers.

To review previous decisions, visit BALCA’s Digest of PERM Decisions.  DOL’s Office of Foreign Labor Certification (OFLC) also has a lot of information about the permanent labor certification process under their Program for Electronic Review Management or PERM. This includes: Policies and Regulations, Frequently Asked Questions (FAQs), Forms and Instructions, along with other useful information. 

USCIS and Immigration Court Closings Due to Inclement Weather

From time to time inclement weather forces the closing of government offices, including offices of the U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR).  When that happens, it’s important to know where to go or who to call to ensure an applicant is not missing an important scheduled hearing or interview. 
Here are some suggestions applicants can follow if they have an appointment scheduled with USCIS and they want to verify that the office is open for business and to obtain further instructions on rescheduling the appointment if the office is closed.
If an individual has an immigration hearing scheduled before an immigration court of the Executive Office for Immigration Review (EOIR), here are some recommendations to verify that the office is open for business. Not attending a scheduled hearing can have grave consequences.  Check ahead with more than one source to make sure.
Needless to say applicants should be contacting their attorney if they have one.  If the attorney doesn’t know whether the office is open for business, let the attorney know where to obtain the information and bill them for your time.  

Requesting Return of Original Documents from USCIS

Applicants should not submit original documents to the U.S. Citizenship and Immigration Services (USCIS) in support of an application or petition. If original documents such as passports or birth and marriage records were submitted however, USCIS provides a way to get those documents back.  To request that an original document be returned, Form G-884 should be submitted.
A few things to keep in mind when submitting the application:  
  • The application requires a notarized signature;
  • A copy of two identity documents must also be submitted;
  • No filing fee is required; and
  • The application should be filed with the USCIS office or service center that is currently processing the case, or, if a final decision has been issued, Form G-884 should be submitted to the USCIS office or service center that took the last action on the case.  The name and address of the USCIS office that adjudicated or is adjudicating the case will normally be on the bottom left-hand corner of the latest Notice of Action or receipt notice.
Additionally, be sure to specify what documents are specifically being requested along with any additional information that might assist USCIS in locating the file and the specific document requested. If requesting documents from a file not relating directly to the applicant, additional documents such as proof of the relationship or a power of attorney may be required.  
On a different post we will cover the benefits and the how to’s of obtaining a copy of an applicant’s “A-File” from USCIS through the use of a Freedom of Information Act (FOIA) request on Form G-639.  

The 112th Congress and what Naturalization Applicants Need to Re-Learn

As the members of the 112th Congress go about taking care of the business of the American people, there are a few things that naturalization applicants need to know as they prepare for their interview.  Due to the recent elections, some civics test answers will change.  More specifically, applicants should check the answers to questions 20, 23, 43, and 47 prior to their interview. The answers to the first three questions may vary depending on where the applicant lives. 
  • Question #20: “Who is one of your state’s U.S. Senators now?”  The U.S. Constitution provides for two Senators from each state for a total of 100 Senators.  Article I, Section 3, provides that “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.” To check the names of your U.S. Senators and much more information about them like where they stand on the issues that are important to you, visit the U.S. Senate’s website (top right-hand corner under “Find Your U.S. Senators”). 
  • Question #23: “Name your U.S. Representative.” With at least 63 seats changing hands in this last election cycle, there are lots of new faces as the 112th Congress convenes.  To find your congressman, visit the U.S. House of Representative’s website (top left-hand corner under “Find Your Representative”). Article I, Section 2 of the U.S. Constitution provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.”
  • Question #43: “Who is the Governor of your state now?”.  The Governor is the chief executive of each state and is vested with considerable limited powers.  To find the governor for your state, visit the following link
  • Lastly, Question #47 asks “What is the name of the Speaker of the House of Representatives now?”  The correct answer is John Boehner.  Mr. Boehner represents the 8th District of Ohio.  View Speaker Boehner’s remarks to the opening session of the 112th Congress
As you prepare for your interview, carefully review the study guides and other materials provided by the U.S. Citizenship and Immigration Services. Be sure to also check out my previous post with interview preparation tips. 

Commandment #5 of Applying for Naturalization: Thou Shall Prepare Well for the Interview

There are some key points that applicants should consider as they prepare for their naturalization interview before the U.S. Citizenship and Immigration Services (USCIS). 
An applicant for naturalization must meet certain requirements.  Apart from ensuring qualification – preferably before application, the applicant must prepare well.  What is a nervous applicant to do? Here are some thoughts to help along the way. 
  • Read the N-400 Naturalization Application carefully.  It’s important that the applicant understand what exactly is it that they signed and submitted to USCIS. Obviously this is best done before submitting the application.  For non-native English speakers, some of the language used in the N-400 application can be a bit confusing and intimidating.  The interviewing officer will read most of those questions verbatim.  Add to that some of the legal language peppered throughout the questionnaire, and your head can be spinning in no time. Reviewing the questions in advance will help the applicant, and the interviewing officer, to move the interview along that much more quickly.
  • Know and understand what the Oath of Allegiance really says.  An applicant for naturalization must show that he or she is attached to the principles of the Constitution of the United States, and will be required to take the Oath of Allegiance.  If the applicant doesn’t know what the oath actually says, then a question might arise as to whether the applicant really understands what he or she is doing.
I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the armed forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

  • Lastly, before heading out the door, the applicant should review carefully the list of documents needed to ensure that he or she is bringing the documents required. Any delay, even for a simple document, is many times measured in months – not weeks.  Below you will find a document checklist and a sample interview notice.  
This may very well be my last entry for this year.  If it is, I want to wish you a Merry Christmas and a prosperous and amazing New Year.  Cheers.    

The United States as a Country of Refuge: A Short Introduction

From the early settlers, to modern-day immigrants, the United States continues to be a country of refuge. Although I heartily acknowledge, as an immigration attorney, that our system has many flaws that need to be addressed through advocacy, legislation, and litigation – the strengths and benefits of our immigration system are many times ignored in the heated debate over immigration.  In the next series of posts we’ll touch upon several of the positive factors of our immigration law and policy.  
On the eve of the vote on the Development, Relief and Education for Alien Minors Act (“DREAM Act“), it is important to keep things in perspective.  I for one, am a very strong supporter of this measure for many reasons that are outside the scope of this entry. A good place to start would be to acknowledge that the United States admits more legal immigrants as permanent residents than all other countries in the world combined.  In 2008 for example, a total of 1.1 million individuals became LPRs in the United States as noted in a 2010 Report by the Congressional Research Service on U.S. Immigration Policy on Permanent Admissions. According to a recent report by the U.S. Department of Homeland Security, estimates of the Legal Permanent Resident Population in 2009 are in the 12.5 million range. 
Stay tuned for future posts discussing what specific elements of our immigration law and policy make the United States a country of refuge.

U.S. Supreme Court Hears Two Immigration-Related Cases This 2010 Term (“Flores-Villar v. U.S.” and “Chamber of Commerce of the U.S. v. Whiting”)

The U.S. Supreme Court will hear two immigration-related cases this year.  The first case is Flores-Villar v. United States and it is scheduled to be heard on November 10, 2010.  The issue in that case is whether a gender and time differentiation of U.S. citizen parents before children born overseas can obtain U.S. citizenship violates the Equal Protection Clause.   The second case, scheduled to be heard on December 8, 2010, is Chamber of Commerce of the United States v. Whiting. The issue in that case is whether provisions of Arizona state law aimed at combating the hiring of undocumented workers are preempted by federal immigration laws.  You can review the Merit and Amicus briefs submitted for both of these cases, and all other cases for this 2010 Term, by visiting the American Bar Association’sPreview of U.S. Supreme Court Cases” page. 
Several months ago I posted an entry about my visit to the U.S. Supreme Court with my teenage son.  We had a good time and I encourage readers who have never visited the Court personally, to make it a goal to do so this year. You will find useful information about the U.S. Supreme Court and the cases it will hear this year on the U.S. Supreme Court’s website, including their Visitor’s Guide to Oral Argument and the U.S. Supreme Court Calendar.  You can also read the biographies of current Justices and a brief overview of the Supreme Court.  Plan your visit well and be there early – lines can get really long, really soon. 

Immigration Enforcement on Steroids. Precursor to Comprehensive Immigration Reform (CIR)?

The Department of Homeland Security (DHS) recently announced unprecedented immigration enforcement statistics achieved under the Obama administration, including the removal of 392,000 noncitizens – 195,000 of which were convicted criminals. Also announced was the audit of more than 3,200 employers suspected of hiring illegal labor, and the approximately $50 million in financial sanctions imposed.  
“This administration has focused on enforcing our immigration laws in a smart, effective manner that prioritizes public safety and national security and holds employers accountable who knowingly and repeatedly break the law,” said Secretary Napolitano. “Our approach has yielded historic results, removing more convicted criminal aliens than ever before and issuing more financial sanctions on employers who knowingly and repeatedly violate immigration law than during the entire previous administration.”
Who would have thought that the Obama administration would be credited with a more than 70 percent increase in removal of criminal aliens from the Bush administration.  Could this be enough to convince skeptical Republicans to consider the viability of Comprehensive Immigration Reform (CIR)? 
The way that I see it, the argument of my skeptical Tea Party colleagues goes something like this: “Are you kidding? CIR? You’re insane. Look, when President Reagan signed a sweeping immigration reform bill into law in 1986, the promise was that there would be a major crackdown to include tighter security at the Mexican border, that employers would face strict penalties for hiring undocumented workers, and that there wouldn’t be a problem of illegal immigration anymore. 25 years later, we have 15 million more undocumented individuals here.”  I see their point, somewhat.  These are fighting words after all, and that’s why I enjoy talking to my Tea Party friends, over tea and crackers (no pun intended), and I avoid the issue of immigration altogether (most of the time).
Maybe President Obama is a genius after all (on the issue of immigration – mind you). If my conspiracy theory is right, President Obama is laying the groundwork to push CIR forward in the Spring of 2011. He’ll bring all the skeptics together and say: “Now hold on, I know I’m not the father of the modern conservative movement, but you wanted troops on the border – and I gave it to you; You wanted more deportations, and I gave it to you – 70% more than your beloved President Bush; You wanted more work site enforcement, and I gave it to you; You wanted strict penalties for employers who hire undocumented workers, and I gave it to you; You wanted nothing to do with “amnesty”, so I gave you “comprehensive immigration reform” or “earned legalization” – pick the term you like; WHAT ELSE DO YOU WANT?” Ok, maybe he won’t be yelling at the end, but it sure would be nice to watch. 

COMMANDMENT #4 of Applying for Naturalization: Thou Shall Feed Your Children (wherever they are)

Last post we discussed the definition of good moral character and how being married to more than one spouse at a time will affect a good moral character determination. As noted earlier, having good moral character is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. What constitutes good moral character, which is not defined by statute, has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.
There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes not financially supporting the applicant’s children (or spouse) – especially those not living with the applicant.
If the applicant has children, that are under 18 years of age, during the qualifying time as a Lawful Permanent Resident (LPR) (whether 3 or 5 years), then the applicant must come prepared to the interview to show that he or she has provided financially for their welfare (whether court-ordered or not). This is especially true if the applicant has children living abroad. In these cases the applicant must bring to their interview proof of support which can include a notarized letter from the former spouse or guardian, or if the children are old enough, letters from the children discussing the support that they have received. Also, the applicant must obtain records of money transfers, or wires that went to provide for their children.
Failing to pay court-ordered child support or alimony payments may also affect a determination of good moral character. Applicants should come prepared to the interview by bringing documents such as: cancelled checks, receipts, a court or agency printout of child support payments, evidence of wage garnishments, or other documentation.
An excellent resource put out by the U.S. Citizenship and Immigration Services (“USCIS”) is the “Guide to Naturalization”. Readers are encouraged to review this document before submitting their naturalization application.
That’s it for now folks. Stay tunned for our next post: Commandment #5 – Thou Shall Not Forget Where You Came From.

Commandment #3 of Applying for Naturalization: Thou Shall Not Have More Than One Spouse at a Time

On our last post we discussed the definition of good moral character and how it is one of several requirements an applicant must meet before becoming a naturalized U.S. citizen. As noted earlier, what constitutes good moral character is not clearly defined by statute, although it has been interpreted by case law to mean behavior that meets the moral standard of the average citizen in the applicant’s community.
There are various factors that will affect a determination of good moral character. Section 101(f) of the Immigration and Nationality Act (INA) has a list of factors that would prevent a person from showing good moral character. One factor that can affect a good moral character determination includes adultery and polygamy.
I know it has been said that King Solomon had 700 wives, but let’s face it, you and I are no King Solomon. This commandment of “one-spouse-at-a-time” should be self explanatory, but in my years practicing immigration law, I have encountered several cases where the applicant had been married to more than one person at a time, and didn’t even realize it. On a couple of other cases, the person thought they were married, when in fact they were not.
Some months ago I had a client that applied for naturalization. On the application he had indicated that he was married. By the time of the interview the “marriage certificate” was finally produced, and to everyone’s surprise, he was not actually married. As with many other states, Virginia first issues a 60-day marriage license to applicants. During those 60 days, the applicant takes the marriage license and presents it to the celebrant who performs the marriage ceremony. The marriage ceremony by an authorized celebrant is a necessary step for the marriage to be legally binding. The minister or other person officiating the marriage completes and signs the Marriage Register and then forwards it to the clerk of the court who issued the license. This individual never had a marriage ceremony performed by an authorized minister, and therefore never had a legally binding marriage.  They went to the courthouse, obtained a license, and had a small house party to celebrate their “marriage” thinking that nothing else had to be done.
We’ve also encountered some people that were under the genuine, albeit incorrect, impression that because they were married in their home country – and not in the United States – that their marriage back home somehow didn’t count or was not valid, and therefore they were “single”. So they find someone else, and decide to remarry, without obtaining a divorce from their home country. In other cases, the person hires an attorney in their home country to file a divorce, the divorce finally goes through, or so they think, he or she remarries in the United States, just to find out later on that their divorce did not in fact go through as the attorney had told them because of a legal technicality (it wasn’t properly filed, the appropriate signatures or seals were missing, the appropriate fees were not paid to the government office, etc).
While it is true that there is a great deal of ambiguity surrounding the meaning of the term ‘Good Moral Character’ in the context of obtaining U.S. citizenship by naturalization, there are some crimes and bad acts that may prevent one from obtaining U.S. citizenship – polygamy is one of them for sure. The moral of the story is that if you have a spouse – keep your spouse (your children will thank you for it). If you don’t keep your spouse, make sure your divorce is final. If you decide to re-marry, keep your divorce certificate because you might need it for your interview.
Stayed tuned for Commandment #4: Thou Shall Feed Your Children (wherever they are).
Custom Design by Design SEP - Salomon Paredes