Applicants Must Meet Requirements @ Time of Hire

The recent BALCA case of Pyramid Technology Solutions highlights something a lot of employers (and even some lawyers) seem to regularly misunderstand, which is that in “experience required” positions where the employer is filing for a current employee, the experiential requirements CANNOT be met by his or her time in their incumbent position. In other words, the worker must meet the experience requirement(s) as of the date of his or her hire.

These cases always involve a balancing act between accurately listing the requirements while also tailoring them as narrowly as possible (to avoid being deluged with applications), but it’s always best to err on the side of caution. This case highlights the idea that it’s always best to play it as safe as possible.

Little Action at BALCA in Recent Months

Likely owing to COVID-19, there seems to have been relatively few decisions published by BALCA in March through the present. The Board had been making substantial progress on a large case backlog, but that seems to have been paused, at least temporarily.

One decision of not is the Lenora Systems one, which you can read here. A software company filed PERM’s for several app developers. In three out of those, the cases were denied because the employer failed to respond to emailed audit requests. The employer stated they never received the emails and, furthermore, would have no reason to not respond to them since they had received other audits for identical positions using the same round of recruitment. The DOL countered by saying there was a presumption of delivery of the emails and the employer was out of luck.

Ultimately, this case is a discussion of “the mailbox rule,” a presumption of delivery that has been developed in common law over many years (and something most lawyers reading this will likely not have had reason to think about since law school). The presumption in the case of emails is in favor of delivery - if an email was sent, it was likely received? But the key questions here is whether the presumption of delivery weak or strong? Meaning, can an employer (or recipient of any mail/email) prevail by simply saying “I didn’t get it?” Or must the employer present additional evidence in support of not receiving it? Or is the simple fact the send didn’t get a bounce-back or nondelivery notice sufficient to assume the email was delivered?

On this topic, BALCA has been both somewhat inconsistent and generally in favor of delivery in recent past cases. However, here, they took a very exhaustive look at what happens in the federal circuit courts, which also varies somewhat. Applying the stances of those courts to the fact here, they found the combination of the employer claiming non-receipt and the fact other identical audits were responded to based on the same round of recruitment to be sufficient to send the cases back and allow for the employer to respond to the audit requests. For employers and lawyers doing batches of workers (ie. multiple positions based on the same round of recruitment), this is a positive decision and a fair one, though it likely would be harder for an employer/lawyer in a single position case to make the same arguments.

Launching New Service - Second Citizenships & the E-2 Program

We have a very interesting new service with our international partners for Chinese, Vietnamese, and Indian-born people who are currently in the EB-5 visa backlog. This also might be a useful service for an H-4 spouse of an H-1b worker who is currently awaiting a number in the EB-2 or EB-3 backlog.

If a person wishes to gain a second citizenship in order to take advantage of the E-2 program while they await visa availability in another category, we are now able to offer a turnkey, concierge service with our partners in Turkey to take advantage of their citizenship-by-investment program.

The program is designed to be both low-risk and ultimately pay for itself. There are two options for Turkish citizenship - purchasing a property for at least USD$250,000 or putting USD$500,000 in a Turkish bank. In both cases, there is a required three year holding period. In the case of the property purchase method, local developers are offering buy-back guarantees at the end of the holding period. In addition, some developers are even offering rental guarantees so that investors will have guaranteed earnings during the holding period. In the bank deposit method, the annual interest rate is in the 2% range, meaning that people in that program earn about USD$10,000 per year.

I recently return from a few days in Turkey where I met with both Turkish immigration lawyers and real estate professionals and developers there. We have assembled a team that can offer a one-stop solution to gaining Turkish citizenship - and profiting from it. Once a person has Turkish citizenship (and their spouse and children under 18 qualify as well based on the same investment), we can process an E-2 case for them. A successful E-2 will provide a long-term solution to immigrate to the U.S. while awaiting availability in a different category. The E-2 does not have a maximum duration, though it must be renewed every five years (based on the bilateral trade treaty between the U.S. and Turkey - other countries may have shorter or different durations). In addition, the E-2 visa for a citizen of Turkey is a multiple entry visa. On the E-2 side, this will also set the client up with a ready-made business opportunity in the U.S. for when they arrive - letting them work and immediately begin earning a normal income.

Contact us for more information about this unique and exciting option.

Referrals Are Not Applications

A recent case decided by BALCA involved a New Jersey restaurant resulted in overturning an incorrect denial by the original certifying officer. In that case, the issue was that New Jersey’s workforce agency “referred” a number of people in their database to the employer in response to its advertisement/job order placed on their website. By law, employers are not required to contact such people (you only have to contact applicants who affirmatively applied). The issue here was that the employer arguably could have done more to document this and confirm these were referrals.

The referral issue is a tricky one in PERM matters because it varies a ton from state to state. Some states have websites that list whether anyone is an applicant or was referred by the agency, which is really helpful (Texas has a very user-friendly website, for example). On the other hand, some states have an interface where only their staff can see whether it was an application or a referral. Mississippi is one example of this where I’ve had some complications arise, and it sounds like that was possibly an issue in this case as well.

The practical takeaway from this from the perspective of an employer is that we’ll need to work to establish clearly whether names coming through the state workforce departments’ site are affirmative applicants or they are referrals. This was an issue here because it seems from the decision, the lawyer and employer thought they’d done enough to show the referrals at the outset and, by the time it came to prove it during an audit, they were essentially having to go back and piece things together from what they could locate at that point.

Ultimately, though, common sense prevailed and their case was approved, so I suppose all’s well that ends well.