• H-1B cap Still Not Reached 

The USCIS continues to accept new H-1B nonimmigrant visa petitions subject to the fiscal year 2010 quota.  As of October 30, 2009, the USCIS reported that approximately 4400 positions available for the H-1B visa classification which are subject to the visa cap still remain (Available at www.uscis.gov) 

• Premium Processing for Religious Workers 

On July 20, 2009, the USCIS announced the resumption of premium processing for nonimmigrant religious worker petitions (Form I-129) filed by certain R-1 petitioners. (Available at www.uscis.gov)

• USCIS Announces Publication of New Notice of Entry of Appearance Form

The USCIS announced the issuance of a new revised Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28). The USCIS will provide a 30-day grace period for the Form G-28, until Oct. 30. After Oct. 30, any prior versions of  Form G-28 that are received will be considered invalid. (Available at www.uscis.gov)

• DHS Rescinds No-Match Rule

On October 7, 2009, the U.S. Department of Homeland Security (DHS) published a regulation rescinding its "no-match" regulation, promulgated on August 15, 2007. Although the no-match regulation has been rescinded, employers need to be cautious in taking reasonable steps to check their records when they are in receipt of a no-match letter since the doctrine and rule on "constructive notice of violations" remains the legal standard of a "knowing violation."  (Available at http://edocket.access.gpo.gov/2009/E9-24200.htm)

• USCIS Launches E-notification Initiative

The USCIS has launched an online, E-Notification initiative for immigration applications/petitions filed at one of the following Lockbox locations: Chicago, IL; Phoenix, AZ; and Lewisville, TX. Individuals who file at one of these locations can elect to receive an email and/or text message providing verification that their application or petition has been accepted. Individuals that would like to receive such E-notification must fill out Form G-1145. Form G-1145, the E-Notification of Application/Petition Acceptance form, must be completed and attached to the top of their application or petition. (Available at www.uscis.gov)

• BALCA Decision - Job Order 

An employer filed an application for permanent labor certification on behalf of the alien for a child monitor. The Certifying Officer (CO) denied the application because the job offer was not completed at least 30 days prior to the filing of the application as required by 20 CFR S656.17(e). The employer argued that the deficiency was not material since there had been no applicants; therefore, certification should be granted. On appeal, the Board affirmed the denial. (86 IR 2366; September 21, 2009; Matter of Blanca Schineis, 2009-PER-00277, (BALCA Sept. 10, 2009)

• BALCA Decision for Employer- Prevailing Wage 

An employer filed an application for permanent labor certification on behalf of the alien for the position of religious teacher. On Form ETA 9089, the employer listed the salary as $16.48 per hour. The State Workforce Agency (SWA) prevailing wage offer was $16.20 and it was the salary stated in the job order. The CO denied the application because of the wage-rate discrepancy. The employer claimed it was a typographical error and that the reason few US workers applied was due to the foreign language requirement rather than the wage-rate. On appeal, the Board ruled in favor of the employer and remanded the matter to the CO for the issuance of a labor certification. (86 IR 2367; September 21, 2009; Matter of Jesus Covenant Church, 2008-PERM-00200 (BALCA Sept. 14, 2009).

• BALCA  Decision Against Employer- Roaming Employees 

An employer filed two applications for permanent labor certification on behalf of aliens for the position of computer programmer. In Form ETA 9089, the employer indicated that its address was in Cedar Rapids, Iowa and that the aliens would work there. The CO denied the application because she concluded that the Cedar Rapids location was a virtual location used to file labor certifications. On appeal, the Board observed the employer's Cedar Rapids office was its business headquarters rather than a satellite office. An application can be filed with the local employment service office having jurisdiction over the area in which the employer's main or headquarters office is located. The Board noted that neither the applications nor the employer's ad indicated that the job involved roaming employees. If the SWA or the CO had known that the jobs were for roaming employees, they might well have provided different directions to the employer on where and how to advertise the positions. The denial of certification was affirmed. (86 IR 2367-8; September 21, 2009; Matter of MSU Software Consultants, 2007-INA-00273 (BALCA Sept. 14, 2009)

IR-Interpreter Releases; IB-Bender’s Immigration Bulletin; American Immigration Lawyers Association Monthly Journal; AILA - American Immigration Lawyer’s Association