Scrivener Error

Below is the extract from USCIS/SCOPS teleconference Agenda dated July 27, 2016 related to Scrivener Error

Although a petitioner may ask USCIS to correct a clerical error, whether the correction will actually be made is based on the totality of the record. (If the request to change the category is denied, note that an amended I-140 can be filed even if the Labor Certification has expired, as long as the original I-140 had been filed during the Labor Certification’s validity period.) Such requests cannot be granted for petitions that have already been adjudicated. For more information, read the USCIS website on “Petition Filing and Processing Procedures for FormI-140.”

Provisional Degree cert. is enough

ACCRAO EDGE (Electronic Database for Global Education) recommends that the Provisional Degree Certificate, offered in India, Pakistan, and Bangladesh, can be accepted as evidence of completing all requirements for the degree in question, the name of the degree, and the date upon which it was approved by the responsible university governing body. 

See the letter here

PARENTAL I-130 & I-485Document Checklist

Note: This list is for U.S. citizens who are petitioning for their foreign parent/s.
q Proof of Petitioner’s Status
o   Birth Certificate (U.S.)
o   Passport (U.S.)
o   Naturalization certificate
q G-325A Biographic Information
o   Petitioner
o   Beneficiary
q Appropriate Photographs (Permanent Residence or “Green Card” style)
o   Two photographs of the USC
o   Two photographs of the foreign parent
o   Photograph instructions at
q Evidence of Parental relationship
o   A copy of your birth certificate showing your name and your parents name
o   A copy of your parents’ civil marriage certificate
o   Copy of your marks card indicating any of your parents name.
o   Copy of your previous passport indicating your parents name.
o   Any other proof showing establishing your parents.

q For Financial support

o   Form I-864 Affidavit of Support
o   US federal tax return for the most recent filing year with copies of any Form 1099 or W-2.
o   US federal tax returns for an additional two years. (if any)
o   Pay stubs for the previous three months.
o   Employment verification letter: The letter must include your full name, salary, job title, and start date. It should be printed on company letterhead, include the address and telephone number of the company, and be signed by an authorized company representative.
q Others

o   Copy of the PARENTS valid passport and any expired passports.
o   Medical exam in a sealed envelope
o   Copies of current and previously issued US visas and other related immigration documentation (e.g., Forms I-797 Approval Notices, Forms I-20 or DS-2019, Employment Authorization Documents, and Forms I-94) or automated Forms I-94 obtained online here.


Friends - USCIS has released announcement that certain H-4 dependent spouses will be eligible to work beginning from May 26, 2015. Those eligible H-4 dependent spouses are:
Who is eligible
·         The principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
·         The H-4 dependents of H-1B nonimmigrant who have extended their H-1B status beyond the usual six-year limit based on an approved I-140 or based on 365 days or more have elapsed since the filing of a labor certification under AC21 guidelines.
How to file for Employment Authorization

  • The above indicated H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee starting from on May 26, 2015 in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD) to begin working.

Class Action against Infosys for Discrimination against American Workers

 It's just ridiculous !! I am not backing Infosys without basis, just look at the facts in the case file here. Basically, the requirement of any job position is known only to the employer. An applicant cannot claim that just because she/he was rejected for the job position implies that they have bad recruiting practices.

One thing sure, bad time for Infosys !!

Summary of the facts

  1. The suit alleges Brenda Koehler, a VMware Certified Professional network engineer with a Master’s in Information Systems, was denied a Lead VMware/Windows Administrator position at Infosys. 
  2. During the interview, “Infosys’s representatives spent a considerable amount of time asking about other subjects, including DNS and Active Directory.” Following her in depth answers regarding DNS and Active Directory subjects, one of the Infosys interviewers, “sighed and stated (incorrectly) that Ms. Koehler had no Active Directory experience.” 
  3. The suit alleges "after Ms. Koehler was rejected, Infosys continued to interview candidates for the position for a period of nearly two months" and "ultimately hired an individual of South Asian descent."

Content Requirements for Ads Do Not Apply to SWA Job Orders - BALCA

Matter of Chabad Lubavitch Center, Click here for the case file


·         On July 11, 2011, the CO issued a second denial letter, stating that the job order contained job requirements which exceeded the job requirements listed on the Employer’s ETA Form 9089 in violation of 20 C.F.R. § 656.17(f)(6) of the regulations.. Specifically, the job order posted at the New York State work force agency3 contains an experience requirement of “Mid-Career (2-15 years)” whereas the ETA Form 9089 only required 24 months experience. (AF 10).

On August 4, 2011, the Employer requested reconsideration. The Employer argued that the regulatory authority relied on by the CO for the denial of labor certification applies only to advertisements and not job orders placed with the SWA. The Employer argued that the regulation section pertaining to job orders does not contain the same content requirements as those for advertisements. The Employer additionally argued that the SWA job order form has the following experience options: Intern, Entry Level (0-2 years), Mid-Career (2-15 years), or Senior (15+ years). The Employer explained: “given that the offered position requires not less than two years of experience, it was automatically listed under Mid-Career (2-15 years)” and the Employer had no control over the automatic listing. 

·         The CO denied the Employer’s application because its SWA job order contained job requirements which exceeded the job requirements listed in its ETA Form 9089 in violation of Section 656.17(f)(6). Section H.6 of the Employer’s ETA Form 9089 indicated that it requires 24 months of experience in the position offered. In comparison, the Employer’s SWA job order submitted with its audit materials stated that the position requires “Mid-Career (2-15 years)” experience. The CO‟s denial is appropriate if subsection 6 of Section 656.17(f) applies to job orders, as the requirements in the job order exceeded the requirements in the ETA Form 9089. See CCG Metamedia, Inc., 2010-PER-00236 (Mar. 2, 2011) (“Stating a range of experience in the recruiting materials that goes above the minimum experience requirements stated in the application inflates the job requirements in the job advertisements, and does not accurately reflect the Employers attestations on the ETA Form 9089. Moreover, it is in violation of the regulations.”).
·         However, as argued by the Employer, Section 656.17(f), “Advertising Requirements” does not refer to job orders. While job orders are clearly part of the overall recruitment process and are a form of advertisement, the Employment and Training Administration (“ETA”) expressly limited Section 656.17(f) to “advertisements placed in newspapers of general circulation or in professional journals.” Job orders do not fall within these two enumerated categories of advertisements. Furthermore, when looking at the overall structure of the PERM regulations, it appears the ETA purposely omitted language stating that the requirements of Section 656.17(f) apply to job orders. For example, under Section 656.10(d) requiring employers to post a Notice of Filing, the ETA added subsection 4 which explicitly states “the notice must contain the information required for advertisements by § 656.17(f).” 20 C.F.R. § 656.10(d)(4). Thus, although notice of filings would not normally be categorized as “newspaper” or “professional journal” advertisements, the ETA expressly stated it intended Section 656.17(f) to apply to notice of filings as well. The ETA did not include such language in the section addressing job orders.
·         BALCA, in a recent en banc decision, A Cut Above Ceramic Tile, 2010-PER-00224 (Mar. 8, 2012), held that based on a reading of the plain language of the PERM regulations, an employer is not required to submit a copy of its job order as proof of the recruitment step, because the regulations state “the start and end dates of the job order entered on the application serve as documentation of this step.” In its analysis, the Board contrasted the regulatory language used for job orders in Section 656.17(e)(2)(i) with the language used for newspaper advertisements in Section 656.17(e)(2)(ii). The Board stated “unlike SWA job order regulations, the regulations governing placement of a newspaper advertisement provide that „documentation of this step can be satisfied by furnishing copies of the newspaper pages in which the advertisements appeared or proof of publication furnished by the newspaper.‟” Id. at 6. The Board went on to state “this distinction is one of relevance. While the PERM regulations clearly require an employer to be able to provide proof of publication of its newspaper advertisement, the regulations do not require an employer to be able to provide proof of publication of SWA job order.” Id. at 6.
·         In support of its regulatory interpretation, the Board in A Cut Above Ceramic Tile quoted the Supreme Court, stating where Congress “includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion o[r] exclusion.” Id. at 7 (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). The same analysis from A Cut above Ceramic Tile regarding documentation of job orders is equally applicable here. The ETA included language in Sections 656.17(e)(2)(ii)(D), 656.17(e)(1)(i)(B)(3), and 656.10(d)(4) applying the content requirements of Section 656.17(f) to newspaper advertisements and notice of filings, but omitted such language in Section 656.17(e)(2)(i) addressing job orders. It can only be reasoned that the omission with regard to job orders was intentional as the ETA obviously knew how to incorporate the advertising requirements of Section 656.17(f) when it so desired as demonstrated by the three occasions where the requirements were specifically made applicable.5 There is nothing in the regulatory history which suggests that the ETA intended Section 656.17(f) to apply to job orders despite the omission of such a requirement in the regulations. Lastly, we acknowledge that the outcome of this decision causes some concern as job orders play an important role in the recruitment of U.S. workers, and the process would certainly be enhanced if the advertising requirements of Section 656.17(f) applied to job orders. However, given that the regulations contain many specific requirements of employers filing Applications for Permanent Employment Certification, and almost strict liability for failure to comply with the delineated regulatory obligations, we are unwilling to add an additional, unwritten mandate for applicants. That power rests solely with the ETA to amend the regulations to ensure a result that more effectively aligns with the purpose of the regulations.

Employers Need not Document Posting Dates of NOF - BALCA

BALCA confirmed that 20 CFR 656.10(d) does not require documentation of the posting dates of the Notice of Filing (NOF) and that the affirmation on the ETA 9089 that the NOF complies with the regulations is sufficient.

Matter of Seven Oaks Landscapes, Click here to read the case file

Highlights below

  • Under the PERM regulations, when an employer files an application for permanent labor certification, it must provide notice of the filing of the application (“NOF”) to its employees. 20 C.F.R. § 656.10(d)(1). This is done by posted notice, for at least 10 consecutive business days, at the facility or location of the employment. 20 C.F.R. § 656.10(d)(1)(ii). The regulations further state the NOF must be “provided between 30 and 180 days before filing the application.” 20 C.F.R. § 656.10(d)(3)(iv). Section 10(d) contains specific requirements as to the content of the NOF, but nowhere does it specifically require the Employer to document or identify the precise dates the NOF was posted. 
  •  20 C.F.R. §656.10(d)(ii). The regulation goes on to state that when an employer is asked to document its compliance with this section, the documentation requirement can be “satisfied by providing a copy of the posted notice and stating where it was posted…” Id. There is no requirement that the specific dates of posting be supplied as part of the documentation requirement. 
  •  The question of whether an employer must document the precise dates of the NOF posting has been addressed by other BALCA Panels. See Big Dog Homes, LLC., 2011-PER-01421 (Dec. 27, 2012) (affirming CO‟s denial); VIP Tours of California, 2011-PER-00540 (March 19, 2012) (affirming CO‟s denial); Future Quest USA, Inc., 2010-PER-01516 (March 6, 2012) (affirming CO‟s denial); Salem Village Nursing and Rehabilitation Center, LLC., 2022-PER-00587 (Jan 27, 2012) (affirming CO‟s denial).   
  •  In Sonora Desert Diary, the Panel determined: [a]lthough 20 C.F.R. § 656.10(d)(1)(ii) pertaining to how the NOF may be documented does not specifically state that an Employer must give the dates the notice was posted, we agree with other BALCA panels that have found such a requirement to be implicit. If the Employer does not provide the dates, the CO cannot independently verify either that the notice was posted for ten days or was posted between 30 and 180 days before filing ETA Form 9089. 
  •  The PERM regulations are rife with minutia, requiring an applicant‟s exacting adherence the first time around. There are no second bites at the apple, and when an applicant omits information required by the regulations, denial is the certain consequence. See 20 C.F.R. § 565.11(b) (“requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.”). 
  •  Here the regulations set forth a minimum standard for documenting compliance with the posting requirements, and those standards do not include specifying the precise dates the NOF was posted. 
  •   It is presumed the absence of such particularity in documenting the specific dates the NOF was posted, was intentional by the drafters. See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“[W]here Congress includes particular language in one section of a statute, but omits it in another . . . , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). 
  •  Therefore, although nothing in ETA Form 9089 requires the Employer to document the specific dates the NOF was posted, the Employer must still affirm, under oath, that the NOF complies with the regulations set forth in Section 10(d). Here, the Employer properly affirmed that the notice was posted for ten consecutive business days within the specified period, and therefore met its obligations under Sections 10(d)(1)(ii) and 10(d)(3)(iv).