• USCIS Issues Memorandum on Form I-140 Successor-in-interest Determinations

US Citizenship and Immigration Services (USCIS) has issued a memorandum that outlines specific instructions on how to make successor-in-interest determinations when adjudicating employer based permanent residency petitions (Form I-140) superseding all previous guidance on this issue (86 IR 2198; September 4, 2009). 

• USCIS Reminders Federal Contractors of E-Verify Requirement Beginning September 8, 2009

US Citizenship and Immigration Services (USCIS) has issued a reminder to all federal Contractors and Sub-contractors about the mandatory use of E-Verify system to establish work eligibility for their workers assigned to government contracts starting September 8, 2009 (86 IR 2199; September 4, 2009). 

• Updated Form I-9

U.S. Citizenship and Immigration Services (USCIS) announced it has extended its approval of Form I-9 to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date (Aug. 7, 2009.) Employers may use a Form I-9 with either the Aug. 7, 2009 or the Feb. 2, 2009 dates. (Available at www.uscis.gov).

• BALCA Decision - Lack of Employer's Name in Advertisement

Employer filed an application for permanent labor certification on behalf of a foreign national  for the position of kosher supervisor which was denied because the employer's advertisement omitted to state the employer's name as required by 20 CFR §656.17(f)(1). On appeal, the employer argued that including its name may have caused its orthodox Jewish patrons to question employer's ability to provide a kosher food supervisor. The Board affirmed the CO's denial of certification finding the employer's claim was not meritorious (86 IR 2206; September 4, 2009; Matter of Famous Corner, Inc. d/b/a Grill-Point, 2009-PER-00083, (BALCA Aug. 31, 2009).

• BALCA Decision- Job Site 

A software development and technology systems employer filed applications for permanent labor certification for four foreign nationals to work as a programmer/analyst in several locations in the US. The CO denied certification the basis the employer's address was in Dakota Dunes, South Dakota and that such job site was a virtual location used simply to file labor certifications for aliens while such jobs were not open for US workers. In fact, according to the CO there was no actual job site where US workers could be referred, interviewed and hired.  The Board affirmed the CO's denial finding that the choice of a South Dakota's virtual job site appeared to be based on the desire to avoid conducting recruitment in a more relevant labor market and was not a bona fide location (86 IR 2207-8; September 4, 2009; Matter of Key Business Solutions, Inc., 2007-INA-00068 (BALCA Aug. 26, 2009). 

• BALCA  Decision - Unlawful Rejection of Qualified US Applicant

A daycare facility filed an application for a permanent labor certification of a foreign national   as a child-care worker. A US applicant was rejected as overqualified. CO denied application because over-qualification was an unlawful reason for rejection. On appeal, the employer withdrew its original reason for rejection and stated that US applicant was rejected because she lacked experience with infants and toddlers. The Board stated that once an employer has rejected a qualified US applicant for an unlawful reason, the Board has no duty to review the legitimacy of a totally independent reason for rejection. (86 IR 2158-9; August 31, 2009; Matter of Olatokunbo B. Cole, 2008-INA-000687 (BALCA Aug. 25, 2009). 

• BALCA Decision - Denial of Labor Cert Cannot be Based Solely on Employer's Failure to Document  Special Skills on Form ETA 9089

An employer filed an application for permanent labor certification of a foreign national as an accountant.  The application was denied because the employer required applicants to have experience with the software QuickBooks but did not document that the applicant had such knowledge. On appeal the employer provided an affidavit whereby it stated that before the foreign national alien was hired, he was tested on QuickBooks. The CO noted that such affidavit was considered new evidence and could have not been considered on appeal. The Board agreed with the CO, but disagreed on the denial of the certification. The Board held that the CO was not justified to deny the application solely based on the failure of Form ETA 9089 to show the alien's qualifications for special skill without first providing the employer an opportunity to clarify the alien's qualifications. Concluding otherwise would be a denial of due process. The Board remanded the matter to the CO for issuance of a labor certification. (86 IR2064-5; August 17, 2009; Matter of Moreta & Associates, Int., 2009-PER-00008, 2009 WL 2448453 (BALCA Aug. 6, 2009).

• U.S. District of Columbia District Court Opinion - Title VII Covers Undocumented Workers

The US District Court for the District of Columbia issued an opinion rejecting an employer's motion for summary judgment on a complaint filed by an undocumented employee from Nigeria. The plaintiff alleged violations of Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. §1981) on the grounds of disparate treatment, retaliation and harassment based on race, national origin and pregnancy. The Court rejected the employer's claims that the protections of Title VII did not extend to the plaintiff because she lacked legal authorization to work in the United States. The basis for such conclusion resides, in the Court's opinion, in the definition of employee in Title VII, which "seem[s] to encompass all employees regardless of immigration or visa status,..."    (Iweala v. Operational Technologies Services, Inc., No. 1-04-cv-2067 (D.D.C. July 14, 2009).)

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  • Mexico - Tourism and Business Visas  

Long term tourism and business visas are being issued for entry of individuals who will contribute to Mexico's economic development whether such persons are traveling as tourists or on business.  The visa is valid for up to 10 years and allows for multiple entries into Mexico. Each entry cannot exceed 180 days. On each occasion they will be issued with new immigration documentation confirming a right of lawful residence. The visa may be granted by consular representatives to citizens of Brazil, Russia, India or China. Individuals entering Mexico on business may not accept any form of compensation from a Mexican source and  cannot be part of a Mexican business organization. Furthermore, Form FM3 (lawful permanent resident's document that allows business visitors to receive remuneration) has been changed. Form FM3 is generally valid for one year. It specifies the activities that can be performed and is proof the holder can legally reside in Mexico.(Frida Arlina and Barragan Lara, Tourism and Business Visas, Form FM3.  International Law Office, September 25, 2009).

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