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Chris Musillo on Nurse and Allied Health Immigration

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  1. FOLLOWING UP ON THE EMPLOYER REFERRAL NOTICE REQUIREMENT

    by , 02-02-2011 at 05:14 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    In the comments to a recent posting on this Blog posting, a reader, "Michael," raised an interesting point. Because of the lengthy nature of my reply, I've decided to re-post the exchange as its own Blog posting.
    Michael said...
    This does bring about an interesting point regarding the importance of internal media posting. The notice of filing alone does not satisfy the requirement of documentation awareness.

    "In addition, the employer MUST publish the notice in any and all in-house media..." (emphasis added) §656.10(d)(ii)



    Why did BALCA not specify that both (a) and (b) need exist together?

     
     
    As with a lot of these PERM recruitment requirements, it is difficult to understand precisely what the DOL was aiming for in (d)(ii).
    I read (d)(ii) to mean that other in-house media is only required if that in-house media is used to recruit for similar positions. There are four scenarios I can envision in which this is relevant:

    An employer has a company-wide newsletter in which it normally posts job openings. In this instance the employer must specifically post the PERMposition.
    An employer has a company-wide newsletter in which it does not normally post job openings. In this instance, the PERM position would not need to be posted.
    An employer has a newsletter in which it normally posts job openings. In this instance the employer must specifically post the PERM position. Additionally, if the employer includes notice of an incentive component to the referral program, this Notice likely can meet the employer referral program standard that was the subject of the Sanmina-Sci decision.
    An employer has a company-wide newsletter in which it does not normally post job openings. In this instance, the PERM position would not need to be posted.However, if the employer elects to post the notice in the newsletter and the employer includes notice of an incentive component to the referral program, this Notice likely can meet the employer referral program standard that was the subject of the Sanmina-Sci decision.

    Obviously much of these scenarios are very fact specific. Thanks for the question/comment, Michael. It was a good one.
    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
  2. H-1B CAP HAS BEEN REACHED

    by , 01-28-2011 at 07:04 AM (Chris Musillo on Nurse and Allied Health Immigration)

    by Chris Musillo

    Last night the USCIS reported the H-1B cap has been reached for this fiscal year. Accordingly, the USCIS will not accept H-1B cap-subject Petitions. The next H-1B cap season begins on April 1, 2011, with start dates of October 1, 2011.

    Please keep in mind that international workers who are working in the U.S. on an H-1B visa with another H-1B employer ordinarily are not subject to H-1B cap. These cases are commonly referred to as "transfer" cases and may be filed at any time throughout the year.

    In preparation of the next H-1B cap season, MU will be holding a free teleconference for our clients. The agenda for this teleconference includes:

    1. H-1 Cap 2011 - analysis
    2. H-1 Cap 2012 - a look ahead and projections
    3. Discussion of the new Form I-129
    4. Update on USCIS Site visits and DOL Audits
    5. Strategy session: H-1B Dependent employers
    6. MU's 5 Big Things to Stay Compliant!
    7. BONUS - MU's 3 Even Bigger Things to Stay Compliant!!

    If you are an MU client and interested in participating on this call, please email Jeana to register.
     
    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
  3. BALCA on Employee Referral Programs

    by , 01-24-2011 at 01:40 PM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    The BALCA (Board of Alien Labor Certification Appeals) just this week released an opinion stating what an employer must do if it is to use the employer referral program recruitment step in the Labor Certification process. The case is In Re: SANMINA-SCI CORPORATION.
    The BALCA says that there must be 3 parts to a satisfactory employee referral program.
    (1) its employee referral program offers incentives to employees for referral of candidates,
    (2) that the employee referral program was in effect during the recruitment effort the employer is
    relying on to support its labor certification application, and
    (3) that the Employer's employees were on notice of the job opening at issue.
    The interesting legal analysis is in the third part. In this case, the BALCA says that the employer must specifically note that the job opening was publicized to the employer's staff. In its analysis it said that Sanmina-Sci Corp gave notice in two ways: (a) the Notice Posting; and (b) internal web posting.
    The interesting part is that the BALCA does not say if the case would have been approvable if only (a) or (b) existed. In Footnote 6, the BALCA specifically decided not to address that important legal question.
    The reason that this question is important is because the (a) Notice Posting exists in every Labor Certification.
    The take-away is this: employers should always make sure that the employer has "publicized" the employer referral program through either (i) a blast email to its relevant staff; (ii) an employer's internal website; (iii) an employer newsletter; (iv) a "paycheck stuffer"; or (v) some other similar method. To be safe, the employer should specifically mention the LC-proffered job.
    As an aside, the BALCA also reiterates that an employer who posts for 10 days meets the Notice posting step as long as it proves that the employer was open for business during each of those ten days. This is helpful in cases where healthcare facilities are the employer, since these facilities are often open on weekends and holidays.
    Typical healthcare occupations that require Labor Certificationsinclude: Occupational Therapists, Speech Language Pathologists, Medical Technologists, and Doctors.
    The BALCA (Board of Alien Labor Certification Appeals) just this week released an opinion stating what an employer must do if it is to use the employer referral program recruitment step in the Labor Certification process. The case is In Re: SANMINA-SCI CORPORATION.
    The BALCA says that there must be 3 parts to a satisfactory employee referral program.
    (1) its employee referral program offers incentives to employees for referral of candidates,
    (2) that the employee referral program was in effect during the recruitment effort the employer is
    relying on to support its labor certification application, and
    (3) that the Employer's employees were on notice of the job opening at issue.
    The interesting legal analysis is in the third part. In this case, the BALCA says that the employer must specifically note that the job opening was publicized to the employer's staff. In its analysis it said that Sanmina-Sci Corp gave notice in two ways: (a) the Notice Posting; and (b) internal web posting.
    The interesting part is that the BALCA does not say if the case would have been approvable if only (a) or (b) existed. In Footnote 6, the BALCA specifically decided not to address that important legal question.
    The reason that this question is important is because the (a) Notice Posting exists in every Labor Certification.
    The take-away is this: employers should always make sure that the employer has "publicized" the employer referral program through either (i) a blast email to its relevant staff; (ii) an employer's internal website; (iii) an employer newsletter; (iv) a "paycheck stuffer"; or (v) some other similar method. To be safe, the employer should specifically mention the LC-proffered job.
    As an aside, the BALCA also reiterates that an employer who posts for 10 days meets the Notice posting step as long as it proves that the employer was open for business during each of those ten days. This is helpful in cases where healthcare facilities are the employer, since these facilities are often open on weekends and holidays.
    Typical healthcare occupations that require Labor Certifications include: Occupational Therapists, Speech Language Pathologists, Medical Technologists, and Doctors.
    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
  4. GAO recommends H-1B changes

    by , 01-17-2011 at 08:11 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo
    The Government Accounting Office is Congress' "Investigating Arm." Congress often tasks the GAO to explore potential improvements to all sorts of government programs. One recent GAO task was to examine the H-1B program and to suggest recommendations to the program.
    On Friday the GAO released its recommendations. Traditionally these recommendations are given consideration but are rarely implemented because of the political nature of immigration policy. Some of the recommendations require Congressional approval. Other recommendations only require Presidential (Executive) action. Still, these recommendations cast a light into the thinking of some of the brighter minds in the government.
    MU's summary of the recommendations are below the links to the report.
    GAO Recommendations
    Summary Report
    Full Report
     
    MU Summary of the GAO Recommendations



    Recommendations requiring Congressional action
    1. Consolidating the LCA so that it is filed with the USCIS, not DOL.
    2. Granting USCIS subpoena power.
    3. Holding staffing companies' end-clients responsible for H-1B and LCA rules.
     
    Recommendations requiring Executive Action
    1. Better electronic links between USCIS and the Consulates and Embassies of the Department of State.
    2. Better distribution of the H-1B numbers, such as allocating ¼ of the H-1B cap in quarterly batches and allowing employers to "rank" their desired H-1B petitions.
    3. Allowing Petitioners with a strong compliance history to file streamlined H-1B Petitions.
    4. Creating a webpage where all employers must post H-1B positions
    5. Improve the DOL's electronic database
    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
     
  5. February 2011 Visa Bulletin

    by , 01-13-2011 at 05:03 AM (Chris Musillo on Nurse and Allied Health Immigration)


    by Chris Musillo


    The Department of State has just released the February 2011 Visa Bulletin, which is the fifth Visa Bulletin for US Fiscal Year 2011. This Visa Bulletin had very small progress in several classifications.








    February 2011 Visa Bulletin


     
    All Other Countries
    China
    India
    Mexico


    EB-2
    Current
    01JUL06
    08MAY06
    Current


    EB-3
    01APR05
    01JAN04
    22FEB02
    08JUL03




    Read the full Healthcare and Immigration Law Blog at www.musillo.com or www.ilw.com.
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