• New Inspection Policies at Newark Airport

On January 27, 2010 CBP announced new policies instituted at Newark Airport to include random inspection of visa holders with possible retention of Lawful Permanent Residents with post-1998 convictions an individuals with pending I-751 petitions for verification of the validity of the I-751 Petition. [Available at www.aila.org]. 

• South Carolina Businesses Audited and Fined

Pursuant to the South Carolina Illegal Immigration Act of 2008, the SC Department of Labor (LLR) audited over 90 businesses in January 2010 citing violations with fines as high as $42,500. First-time violation penalties have been waived where employers have agreed to take steps to ensure compliance. [List of audits and report on violations can be found at www.llr.state.sc.us].

• ICE Serves 180 Notices of Inspection to Businesses in LA, MS, AL, AR and TN

U.S. Immigration and Customs Enforcement (ICE) issued Notices of Inspection to 180 businesses in Louisiana, Mississippi, Alabama, Arkansas and Tennessee alerting employers that ICE will be inspecting hiring records to confirm compliance with employment and immigration laws. [Available at www.ice.gov].

• Cincinnati Business Fined By ICE after Worksite Investigation

Immigration Customs and Enforcement (ICE) conducted a worksite investigation of Koch Foods of Cincinnati and found that the company was employing more than 100 undocumented workers.  Upon completion of its investigation, ICE issued a Notice of Intent to Fine and the company agreed to pay a fine of $536,046. [Available at www.ice.gov].

• USCIS Announces Amended Filing Instructions and Addresses for Form I-824
  

USCIS has announced revised filing instructions and addresses for applicants that are filing an Application for Action on an Approved Application or Petition (Form I-824).  [Available at www.uscis.gov].

• USCIS Updates Form I-129 and Form I-751
  

New Form I-129, Petition for a Non-Immigrant Worker is now dated December 4, 2009 with an expiration date of July 31, 2010. Prior versions of the form are accepted. New Form I-751, Petition to Remove Conditions on Residence is now dated December 30, 2009 with an expiration date of December 31, 2010. Prior versions are not accepted. [87 IR 160; January 18, 2010].

• Greece Becomes a Member of Visa Waiver Program

On March 9, 2010, Secretary Napolitano announced that Greece has become a Member of the Visa Waiver Program. [Available at www.dhs.gov].

•  BALCA decision– Job Order 
  

Employer filed a PERM application on behalf of a foreign national for position of mason worker indicating a start date of May 16 and the end date as June 15, 2007.  The Certifying Officer (CO) accepted the application for filing on July 2, 2007 but denied certification because the job order was placed with the State Workforce Agency (SWA) less than 30 days before filing.  On appeal the Board affirmed holding that the SWA job order must have ended at least 30 days prior to the filing of Form ETA 9089.  [87 IR 100; January 11, 2010; Matter of Feely Landscaping, Inc., 2009-PER-00422 (BALCA Dec. 16, 2009)].

• BALCA decision – Actual Minimum Requirements 

Employer filed a PERM application on behalf of a foreign national for the position of carpenter requiring a high-school degree, six months of training in construction, and six months of experience in the job offered.  The work experience listed on Form ETA 9089 had been gained at the employer.  The CO denied application on the grounds that the requirements listed on Form ETA 9089 did not represent the employer's actual minimum requirements for the job.  On appeal, the Board affirmed because it appeared that the employer hired the foreign national who did not have the experience that it required of US applicants. [87 IR 99; January 1, 2010; Matter of Davis Brothers Construction Co., 2009-PER-00228, 2009-PER-00230, 2009-PER-00240, and 2009-PER-00245 (BALCA Dec. 16, 2009)].

• BALCA decision – Additional Recruitment Steps Required for Professional Position

Employer filed a PERM application on behalf of a foreign national for a professional position of manager analyst.  The CO denied the application because the employer did not conduct the additional recruitment required for recruiting professional foreign nationals.  The employer asserted that it was in compliance after providing dates for the job order and after having published the ad on such position in two Sunday newspapers and one with the state workforce agency.  The Board affirmed the denial stating an employer must conduct at least three additional recruitment steps from a list of 10 options for a professional position. [87 IR 100; January 11, 2010; Matter of Home 4U Realty, 2009-PER-00076 (BALCA Dec. 17, 2009)].

• BALCA decision – Business Necessity
  

Employer filed a PERM application on behalf of a foreign national for the position of truck driver indicating that knowledge of a foreign language was required.  The CO asked the employer to provide documentation that would prove a business necessity for this requirement.  The employer reasoned that the company delivers their products in a community in which Spanish and German are spoken.  The CO denied the application because the employer failed to demonstrate that the company's truck drivers needed to communicate with a large majority of the employer's customers, contractors, and employees who cannot communicate effectively in English.  The employer filed a request for reconsideration in which it asked what evidence would be considered sufficient to prove the business necessity of truck driver's ability to speak a foreign language and whether the employer' spreadsheets would be sufficient. The CO denied reconsideration because the employer did not enclose any documentation with its request. On appeal, the Board affirmed the denial of certification citing to 20 CFR §656.17(h)(2) as the authority on what type of evidence may be used to support a showing of business necessity. [87 IR 100; Matter of UMC Logistics, Inc., 2009-PER-00188 (BALCA Dec. 17, 2009)].

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