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Special PERM Issues – There’s No Place Like Home

October 26th, 2012
posted by at 12:43 am

By Pam Prather

 

 

 

 

 

 

 

 

We’ve all heard the sage advice regarding real estate, that the three most important considerations in purchasing are location, location, location. Well, that’s kind of true in many employment-based permanent residency cases, too.

One of the first things you do when a client hires you to do a PERM application is to strategize the case.  And one of the first steps in strategizing is figuring out the location for which you will file the Prevailing Wage and test the job market. Many times this is quite simple, and you can immediately move on to the next steps. In other cases, however, “Where”? is not such an easy question to answer.

This is an important issue, because:

The Immigration and National Act, 8 U.S.C. § 1182(a)(5)(A), provides that “[a]ny alien who seeks to enter the United States for the purpose of performing skilled or unskilled labor is excludable, unless the Secretary of Labor has determined and certified to the Secretary of State and the Attorney General that…there are not sufficient workers who are able, willing, qualified (or equally qualified in the case of an alien described in clause (ii)) and available at the time of application for a visa and admission to the United States and at the place where the alien is to perform such skilled or unskilled labor ..” Thus, the Department of Labor’s regulations require an employer to prove through a test of the labor market that that there are not sufficient workers in the United States who are able, willing qualified and available at the time of application for a visa and admission into the United States and at the place where the alien is to perform the work, and that employment of the alien will not adversely affect the wages and working conditions of United States workers similarly employed. (emphasis added) (Paradigm Infotech, 2007-INA-3,4,5 and 6 (June 15, 2007).

For roving employees, tele-workers, traveling salesmen, etc., there really is no “home” for their job.  But just as they have lagged behind in responding to other changes in the contemporary workforce, the Department of Labor (DOL) has not yet fully addressed this issue when it comes to Labor Certification.  Sometimes, Immigration practitioners have had to play a “let’s see if this will work” game with the DOL Alien Employment Certification office.

For most of us, guidance on this issue began with the Employment Training Adminstration’s (ETA’s) Memorandum of May 16, 1994.  In it, the government provided instructions regarding labor certifications (pre-PERM) which stated “applications involving job opportunities which require the alien beneficiary to work in various locations throughout the U.S. that cannot be anticipated should be filed with the local Employment Service office having jurisdiction over the area in which the employer’s main or headquarters office is located.”

Of course, nothing is ever that simple in immigration law.  The Board of Alien Labor Certification Appeals (BALCA) has also ruled that “the mere presence of an employer in a location is not, in itself, sufficient justification for filing the labor certification from that location”.  If the location is thought to be too rural, or has a Prevailing Wage that is significantly lower, or the employer fails to conduct recruitment on a national scale, DOL has been know to “kick” the application out.  If the address of the work site is the same as the alien’s home address, the PERM is likely to pick that up for audit.  These scenarios are not necessarily bad, because at least they give you the opportunity to explain case details more clearly.  Naturally, though, an audit response can add significantly to the overall processing time.

Some cautious practices can help quite a bit when a job location is in question.  You can get a Prevailing Wage for possible work sites, and make sure the employer offers a salary that matches the highest one.  You can ensure that the recruitment campaign is widespread – even national. You can post Notices at as many sites as the employer will provide. These are ideas to take into consideration when strategizing your case, and analyzing risk versus benefit.

Hopefully we’ll soon have a Department of Labor that truly understands our modern employment practices.  It would be great to have job descriptions, wage reports, recruitment guidelines, etc. that better reflect today’s market.

Until then, remember – wherever you go, there you are…..

You’ve Got Mail!

March 26th, 2012
posted by at 6:53 pm

By Pam Prather

eBay, EMC, General Electric, Hewlett-Packard Co., Intel, Microsoft, Texas Instruments, Boeing, Dow Chemical, Caterpillar, Chevron USA.

Reads like a Fortune 500 list, doesn’t it?  These are big companies. Big, American companies.  They matter to our economy. If we want to continue with this agonizingly slow recovery, we need to pay attention to their wants and needs.  And what is a common ‘want’ that they report?  A better visa system.

For many Americans, hiring foreign workers seems counterintuitive to creating jobs for U.S. citizens.  But could corporations like those listed be so successful if they didn’t know how to run a business?  Recently, these companies and others wrote a joint letter to President Obama regarding their frustration with a recent uptick in L1B visa denials (from 7% in 2005 to 27% in 2011). They indicate that the “U.S. is creating ‘unprecedented delays and uncertainty’ around L-1 visas, which are used for intra-company transfers of employees from foreign offices to U.S. offices”.  They also say “[s]uch delays or denials do not enhance compliance or enforcement and do nothing except disrupt carefully-laid business plans and create significant costs to the company and the American economy”.

I don’t know about you, but I don’t think we want to disrupt the business plans of giant U.S. companies who continue to struggle for recovery – and growth – in this sluggish economy.  We WANT them to do well, to keep their offices here in the U.S. open, and to hire whomever they decide is going to make their business thrive.  Study after study shows that the free-flow of highly-skilled employees is imperative to a successful capitalist market system. Why would the USCIS, through the Department of Homeland Security, act in opposition to our best chance for continued economic  recovery?

Here’s hoping the President reads his mail.

Consult an immigration attorney for more information about L1B (and other) visas.

Putting U.S. citizenship to the test

July 5th, 2011
posted by at 7:59 pm

Lately, many have been weighing in on what U.S. citizens should expect of those who aspire to become American citizens. I sometimes wonder if these folks even know what it takes to reach citizenship or legal status in this country and if they would be able to live up to those same standards, if put to the test.

At the end of the long, arduous and expensive road to naturalization, aspiring U.S. citizens must pass a naturalization test and interview. People who want to become citizens must answer 6 of 10 questions correctly from the 100 possible questions on the nationalization test.

More than 24,000 immigrants became citizens at 350 special ceremonies from June 27 to July 4. This Independence Day we celebrated the thousands of immigrants who have crossed the finish line to U.S. Citizenship and have chosen to make this country their home after years of hard work, sacrifice and dedication.

Yesterday, NBC 17’s Justin Quesinberry http://www2.nbc17.com/staff/52705/ quizzed people enjoying Independence Day activities at the State Fairgrounds in Raleigh.

Watch Video: Can You Pass The US Citizenship Test?

Immigration for Spouses and Children: The Visa Roller-Coaster Ride

January 20th, 2011
posted by at 8:38 pm

For more than a decade, it has taken about 4 years for most spouses and children of Permanent Residents to immigrate to the United States as green card holders. 

The reason for the long wait? 

An “immigrant visa number” must be available. 

This has been taking around 4 years for foreign nationals in this category.  At least, until the summer of 2010.   Around June of this past year, the wait went from 4 years to 2 ½ years.  By August, the wait was down to 1 ½ years.  By December, the wait appeared to be only 4 months for a visa number to become available in this category.  

There was no reasonable explanation for what was happening.  It was truly shocking! 

Unfortunately, in January the visa number roller coaster came to a complete stop and then with more speed than before, took us all back in the direction from where we started.  That’s right—the visa numbers went backwards. (The official term for this is called visa retrogression.)  January and February Visa Numbers for this year show the wait at around 3 years.   And we’ve got a feeling the visa number roller coaster isn’t done with us yet!  

See for yourself by reviewing the Department of State Visa Bulletins for the past year.

As an immigration attorney, I know how confusing the process can be for those who are trying to understand and navigate the sharp twists and turns of the immigration process. I answer client’s questions every day. If you have questions or would like more information on LPRs sponsoring relatives or visa number availability for the various family-based categories don’t hesitate to contact us.

Immigration Process: Could feel like the longest roller coaster ride of your life

Making Your Mark During The Season of Giving

December 16th, 2010
posted by at 4:52 pm

Bashyam Spiro has shown 15 years of deep devotion to the law, but the people within the firm have passions that extend far beyond that.  We bring as much enthusiasm to our outside interests as we do to our work. 

Whether it’s volunteering to help at the American Bar Association’s Citizenship Day, traveling to Africa to donate soccer balls to school children in need, carving out time for our families or presiding over a professional organization, we feel that we have a sense of fulfillment and balance through our engagement in the community around us.

In 2008, Dana Dorroh, a friend of the firm’s managing partner, Murali Bashyam, introduced him to the Tammy Lynn Center for Developmental Disabilities asked him to pay the center a visit. After that visit, something a close friend once said to him resonates  – “ we as a society should wrap our arms around those who cannot help themselves.”  

That’s why he continues to support the Center today. During this gift-giving season, join Murali in supporting the Tammy Lynn Center’s vital work and the children, adults and families they help every day by making a tax-deductible donation today.

Click on the logo to donate today!

In the midst of the Holiday hustle and bustle, many people forget about some of the most important values and traditions associated with the Holiday season and Christmas – Giving being the most prominent of these.

There are many things that you can do to liven up somebody else’s Holiday season and help spread a little bit of Christmas cheer. One of the most thoughtful things you can do over the Holiday season is to donate to a charity.

Whether you are giving a cash donation, dropping your spare change into a bucket at your local grocery store or even if you are volunteering your time at the local rescue mission, giving is a wonderful thing to do – especially during the Holiday season. It is important to remember that there are many others out there that are less fortunate than you.

If you have only just a little bit to give, that’s ok. You will make the Holiday that much better for someone.

Bashyam Spiro 15th Anniversary Memory #7: LYDIA

December 8th, 2010
posted by at 2:25 am

By Lydia Salett, Bashyam Spiro Accountant

I’ve been working as a bookkeeper with Bashyam Spiro for almost 3 years.  The first time I walked into the building, and saw the grand piano in the lobby, I was sold on the job before my interview appointment even began. 

Why, you ask? Well, in addition to my normal every day routine of bookkeeping I have the privilege of working with individuals who also appreciate music and the arts as much as I do.  Over the years my co-workers at Bashyam Spiro have seen my growth as a jazz musician and celebrated my successes along the way.  I appreciate that.

Working at Bashyam Spiro has allowed me the opportunity to meet some wonderfully unique clients and work along side with some very talented and knowledgeable individuals.  I am glad to be apart of this firm and wish its continued success.

Sound Accounting, Serene Life

March 26th, 2010
posted by at 5:38 pm

Post by: Lydia Salett, Accountant, Bashyam Spiro LLP

I’m fairly new to the immigration law environment but as an Accountant, handling money for a business can be stressful regardless of where you work or how the economy is doing. 

So, how do I balance all the stresses of life and work? 

I play music…

For the past couple of years I’ve been studying jazz piano at a local university and let me tell you this subject matter requires quite a bit of discipline.  But, when it’s time to perform, it’s all worth the effort.  To me, performing means providing an atmosphere of escape and serenity for others, and for myself.

When it comes to performing, there have been times when I’ve been stressed, hoping that it would not be a disaster due to my feelings of inadequacy or lack of preparation.  But, even in those situations things just have a way of working themselves out.  Jazz is the type of music that, in my opinion will always be around.  So even if I’m still able to perform at 80 years of age, it will be a genre of music that most people enjoy.

There’s nothing like inviting co-workers, during a weekday, to a restaurant where I’m performing and hearing my colleagues conversing and laughing louder than any other person in the establishment (now that’s priceless). It just lets me know that they are all de-stressing after a long and hard day at work. 

Last year, I found out Murali Bashyam, the firm’s Managing Partner, played the guitar.  I brought a CD to work and asked him if he would consider playing on a gig with me.  I only wanted him to do one song.  I mean, he once released a CD with his band, so playing guitar with me should not be so hard, right?  Well, he basically chickened out by telling me he had a lot of work to do and would not have time to practice. 

I then shifted my focus to Pam Prather, our Client Relations Manager, who’s always singing or humming a tune around the office.  Pam used to be a singer in a rock band back in the day, and is naturally gifted in the vocals department.  I am picturing her under the lights, singing jazz standards while I accompany her on the piano. 

So along with performing my daily accounting duties, I’m secretly working on a plan to get her behind a microphone. It’s one of those things that you just have to wait to see how it plays out.

Pledge for March for America

March 22nd, 2010
posted by at 3:55 pm

On Sunday, thousands of diverse groups from across the nation marched on the National Mall in Washington D.C., peacefully, calling for immigration reform. 

During the past few weeks, various ethnic and advocacy groups across the U.S. have promoted fundraising efforts to help people get to Washington, D.C., for the immigration reform rally.

A similar call for action happened right here in North Carolina, where the state’s Spanish-language media network, Que Pasa, called for the public’s support through their radio airwaves to sponsor additional buses, food and water for community members wishing to take the ride up to D.C. for Sunday’s march.

According to the U.S. Census Bureau, the area known as the “research triangle” is the fastest growing metropolitan area in the country, with a growth rate of 4.3 in 2008. And, part of the growth is due to immigrants choosing this area to settle down: almost 35 percent of immigrants in North Carolina came to the United States after the year 2000. 

Ethnic media outlets, like Que Pasa, have been keeping a watchful eye on the changes in North Carolina’s immigration issues, which have become an important topic for the Hispanic community in light of the state’s clamp down on undocumented immigrants. 

Que Pasa newspaper’s print and online editions run the “Buzon del Inmigrante” -The Immigrant’s Mailbox – where readers can write in with immigration-related questions.

We recently built a partnership with the Spanish-language news network to provide immigration education and information to the state’s Hispanic community, so when I received a call from Que Pasa’s account executive, Josie Aronson, requesting Bashyam Spiro’s pledge of support for Sunday’s march, I knew that we would want to contribute our own “granito de sal” (grain of salt). Our managing partner, Murali Bashaym immediately agreed to pledge to the cause.

The media company had personally sponsored 6 buses. But with the support of local businesses, like us, and individuals in the community, they were able to add 6 additional buses to their caravan to the nation’s Capitol in just 24 hours!

Our firm was unable to attend the historical event at Washington’s National Mall, but as an immigration law firm we know that the topic of immigration is widely misunderstood in America, which causes unnecessary conflict where none should exist.

I worked as immigration caseworker for a U.S. Congressman several years ago and have since had an interest the immigration system and learned just how much it is in need of a “face lift.” While I did not go through the immigration system, I grew up in Puerto Rico and my grandparents came to the U.S. from Puerto Rico, Italy and the U.K.

Our managing partner, Murali Bashyam, has been an immigration lawyer for over 14 years, and represents many immigrants in North Carolina and across the United States.  He too is an immigrant.  His parents are from India and he was born in Canada.  He is passionate about the topic of immigration for many reasons, one of which has to do with the wonderful people we meet through our work. 

That’s why we are committed to supporting events like yesterday’s march, as well as, initiating conversations through the media and within the community that will hopefully result in mutual understanding among immigrants, U.S. citizens and U.S. permanent residents.

Latest Immigration Minute Segment In Spanish: Notarios vs. Abogados

March 12th, 2010
posted by at 7:00 am

 

Many intending immigrants who would otherwise qualify for immigration benefits discover they will never be successful because an immigration “consultant” or notary destroyed their dreams.

While many legitimate community and religious organizations provide immigration-related services, non-lawyers who advertise as legal “consultants” or “notarios” are not authorized or qualified to help with immigration matters.

It is against the law for “public notaries” or even foreign lawyers who are not licensed in the United States to provide immigration advice.

Only a U.S. licensed lawyer or accredited representative is authorized and qualified to assist with a person’s immigration case. You can verify whether a lawyer is in good standing and licensed to help you by contacting your state bar association or the American Immigration Lawyers Association.

Our latest Immigration Minute segment is hosted by our Paralegal, Diana Barrezueta, and contains information, in Spanish, to help Spanish-speaking consumers take action and locate qualified immigration attorneys in their area.

Is that Big Foot? No, It's Bashyam Spiro.

March 11th, 2010
posted by at 8:00 pm

As a long-time media professional I find it difficult to imagine working without the internet and without an online presence. I am always amazed by businesses and professionals that have no desire to make any semblance of a digital footprint. I wonder how they will ever survive.

Yes, it sounds a bit dramatic but the easy versatility of the web, has made other mediums almost obsolete and any business or professional with a desire to grow and succeed must become part of the digital revolution in order to complete in any field and any market.

When I interviewed for a job with Bashyam Spiro late last year, I was so impressed to see that the firm had already made a significant online footprint. I was excited to become a part of that growth and once I jumped onboard we began working on ways to further expand that presence through other online media tools.

During the couple of months since I’ve been onboard we’ve gone beyond the firm website, e-newsletter and Facebook fan page to expand our Twitter interactivity, build a new, more personal, staff blog, and sign on to LinkedIn and JD Supra.

I’m also able to use my creative streak and video production background to produce regular educational video segments that we call the “Immigration Minute,” to educate folks on immigration benefits, news and information in a useful and comprehensive way.

Our very own Bashyam Spiro You Tube Channel takes our community outreach and educational efforts to the next by enabling the free viral online sharing of immigration themed, informational video segments, in both English and Spanish, for consumption by colleagues, clients and prospective clients.

With the constant evolution of Web 2.0. one never knows where you may see Bashyam Spiro’s digital footprint popping up next…

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