• Revised Form ETA 9035, Labor Condition Application for Nonimmigrant Workers, Available
  
  The Department of Labor has issued a new revised Form ETA 9035 (exp. January  31, 2012). (86 IR 804; March 23, 2009).
  
   
• USCIS Announces New Requirements for H-1B Employers Who Receive TARP funding
  
  USCIS announced new and additional requirements for employers, who receive funds through the Troubled Asset Relief Program (TARP) under section 13 of the Federal Reserve Act before they may hire a foreign national to work in the H-1B specialty occupation category.  The new "Employ American Workers Act," (EAWA) applies to any Labor Condition Application and H-1B petition filed on or after Feb. 17, 2009. The EAWA also applies to those hired based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date. EAWA does not apply to petitions for change of status of a beneficiary already working for the employer in another work-authorized category. Furthermore, it does not apply to petitions seeking an extension of stay for an employee still employed by the same employer. (available at www.uscis.gov).
  
   
• EB-5 Program Extended
  
  USCIS announced that the Immigrant Investor Pilot Program has been extended through September 30, 2009 to adjudicate all Regional Center Proposals and all Immigrant Petitions by an Alien Entrepreneur, together with Applications to Register Permanent Residence or Adjust Status. (available at www.uscis.gov). 

• PERM Decisions: Foreign Language Requirement
  
  An employer, in the import-export business filed a labor certification on behalf of a foreign national who was going to fill the position of operations manager.  His labor certification application was denied by the reviewing officer on the grounds the employer failed to justify the business necessity for requiring a foreign language for the job applicant based on an alleged need to communicate with a large majority of the employer's customers who could not communicate effectively in English.  The Board of Immigration Appeals upheld the denial that forty percent was not a majority as defined under the regulation which provides, "... that an employer may establish a business necessity for a foreign language requirement where 'a large majority' of the business' customers, employees or contractors' cannot communicate in English."   (86 IR 714-5; In Matter of Los Angeles Center of Commerce, 2008-PER-00167, 2009 WL 512792 (BALCA, Feb. 25, 2009).
   

• BALCA Decision: Kellogg Language Not Mandatory

  The Board of Alien Labor Certification Appeals (BALCA) held that a denial of certification for an employer's failure to write the Kellogg language on ETA Form 9089 offends fundamental due process. The Kellogg language comes from 20 CFR §656.17(h)(4)(ii) which states, in relevant part, that "[i]f the alien beneficiary already is employed by the employer, and the alien does not meet the primary job requirements and only potentially qualifies for the job by virtue of the employer's alternative requirements, certification will be denied unless the application states that any suitable combination of education, training, or experience is acceptable." According to the court, there is no designated space on the ETA Form 9089 and  the employer's failure to include the Kellogg language could not amount to bad faith.  (86 IR 634; Matter of Federal Insurance Co. (Chubb Group), 2008-PER-00037, 2009 WL 484997 (BALCA Feb. 20, 2009).)

• Federal Court Decision - Employer's Ability to Pay
  
  The U.S. Court of Appeals for the First Circuit affirmed a decision by the District Court where an employment-based immigrant visa petition was denied based on the employer's inability to pay. The court held that the since the employer's tax returns for the two preceding years showed a loss of over $30,000 and liabilities greater than assets, his ability to pay the disclosed salary of $40,000 to the alien was not believable. The fact that the employer had been deducting for depreciation more than $50,000 was not relevant. The officer did not err in not adding such depreciation in his calculation of employer's ability to pay the proffered salary. (86 IR 797; River Street Donuts, LLC v. Napolitano, 2009 WL 531874 (1st Cir. 2009).)
   
• AAO Decision: Qualifying a U.S. Employer
  
  The California Service Center denied an H1-B petition filed by a software development and consulting firm to employ a systems analyst on the grounds that the petitioner did not qualify as an employer to file an H1-B petition. On review, the Administrative Appeals Office (AAO) found that the employer met the requisite conditions and added that even though the beneficiary was not going to perform services at a client's facility and would be subject to a client's work rules and directives of the employer, this relationship with the client did not change the employer/employee relationship between the petitioner and the beneficiary. (86 IR 803; Matter of [name withheld], File No. SRC 05 130 52406, 2008 WL 5236700 (AAO, Sept. 4, 2008).)

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