• ICE Refocuses Worksite Enforcement Strategy to Target Employers
  
  On April 30, 2009 USCIS issued a fact sheet that stated that ICE will focus its resources on criminal prosecutions of employers who are found to have knowingly hired illegal immigrants. During investigations, ICE will also look for evidence of undocumented workers' mistreatment as well as securing warrants, indictments or commitments from the US Attorney's Office to prosecute offending employers. (86 IR 1267; May 4, 2009)

• Atlanta and Detroit Airports Start Collecting Biometrics
  
  On May 28, 2009 the U.S. Department of Homeland Security (DHS) began collecting biometric-digital fingerprints from non-U.S. citizens departing the United States as part of a pilot program at Hartsfield-Jackson Atlanta International Airport and Detroit Metropolitan Wayne County Airport. (Available at www.dhs.gov)   

• Retrogression in India EB-2
  
  The U.S. State Department (DOS) June 2009 Visa Bulletin shows a retrogression of the EB-2 category for EB-2s extending to a wait time of more than four years for the allocation of an immigrant visa for permanent residency ("green card"). The EB-1 and EB-3 Preference categories remain unchanged. http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html)  
  
   
• USCIS Continues to Accept FY 2010 H-1B Petitions
  
  On May 13, 2009, the Department of Labor released notice for the mandatory use of new iCERT online portal for Labor Condition Applications (LCAs) has been postponed until June 30, 2009. (Available at http://www.foreignlaborcert.doleta.gov/).
   

• PERM Decisions: Failure to Establish Business Necessity for Excessive Experience Requirement.
  
  An employer filed a labor certification (ETA Form 9089) which required seven years of experience in the job offered despite the SOC/O*Net Code categorized the occupation advertised as a Job Three Zone which requires less than seven years. The employer failed to provide any documentation supporting the "business necessity" for an experience requirement that exceeded the one listed in the SOC/O*Net Code and certification was denied. (86 IR 1397; May 18, 2009; In Matter of Florida Air Temp. Inc., 2009-PER-00198 (BALCA, May 8, 2009)).
   
• PERM Decision: Need to Note Prior Experience on Form ETA 9089
  
  Because the employer failed to state the alien's employment history on the ETA Form 9089 the application for labor certification was denied. The evidence of employment history in the employer's file was insufficient to allow certification and its instructions clearly requires employers to list in Section K all experience that an alien possesses that qualifies him for the job advertised. (86 IR 1398; May 18, 2009; Matter of Pa'Lante LLC, d/b/a OLA Miami, 2008-PER-00209 (BALCA May 7, 2009)). 
   
• PERM Decision - Request for Review Versus Motion for Reconsideration
  
  The employer filed a labor certification for the position of a pump operator. The Certification Officer (CO) denied the application because Section K did not show that the alien possessed the required experience prior to being hired by the employer. The employer filed a Motion to Review but the CO treated it as a Motion for Reconsideration and denied the motion. On appeal, the Board held that is was unfair to deny reconsideration based on the failure to document an exception when the ETA Form 9089 did not have any place for an employer to indicate that its application is based on a statutory exception. The Board remanded for an opportunity for the employer to present such documentation. (86 IR 1399-1400; May 18, 2009; In Matter of Medical Gases, Inc. d/b/a MG Group, 2008-PER-00239 (BALCA May 7, 2009)).

• BALCA Decision - Employer Did Not Act in Bad Faith by Not Contacting US Applicants
  
  Employer sought to employ an alien as an Agriculture/Livestock Supervisor. The Virginia Employment Commission referred three US applicants to the employer. The CO issued a Notice of Findings (NOF) proposing denial based on the failure of the employer to contact the referred US applicants. The employer showed that it never received such referrals, requested proof by the state agency that the referrals were sent, contacted the applicants after the issuance of the NOF and submitted evidence that none of them were interested in the position. BALCA reversed the CO denial and granted certification on the grounds that the employer never received the referrals from the agency. (14 BI 598-9; May 15, 2009; Matter of Stillmeadows Farm, 2008-INA-00045, 2008 BALCA LEXIS 96 (BALCA Oct. 28, 2008)).
   

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