Foreign Employees: Are You Temporary Or Permanent?

Employment of foreign workers in the U.S. is a tricky business.  The rules and regulations are complex and can sometimes be confusing.   One example are the differences between temporary and permanent employment, as illustrated by a recent decision by the labor certification appeals board in Matter of Bally Gaming Inc., decided on  9/2/2016. 

In Bally, the employer submitted an Application for Permanent Employment Certification to sponsor a foreign worker employee for permanent employment as a Software Engineer in Egg Harbor Township, New Jersey, with no travel requirements.

After noticing that the employee was residing in Kennesaw, Georgia, at the time of filing, the Certifying Officer (CO) issued an audit notification to the employer, requesting for documents regarding the location of the permanent employment.

The employer responded by explaining that the employee was indeed working in Georgia based on his temporary H-1B employment status.   Due to business reasons, the employee had to work in both Kennesaw, Georgia, and Egg Harbor, New Jersey, for the time being.  The CO, nonetheless, denied the labor application. The CO concluded that the work locations did not match the information contained on the prevailing wage determination (PWD) submitted by the employer.  The PWD wage was based on employment as a Software Engineer in the Egg Harbor Township, NJ, while the foreign worker would also be performing work in Kennesaw, Georgia.

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The employer requested for reconsideration of the denial, which was rejected by the CO.  In affirming his denial, the CO also invoked 20 C.F.R. § 656.17(f)(7), a PERM regulation, as another basis for denial.  This regulation provides that an employer’s advertisements of a job opportunity must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.”   By allowing the employee to live in George and travel to work New Jersey, this can be considered a favorable condition or benefit that should have been announced in the advertisements, according to the CO.  Since the advertisements only contained the work location in New Jersey, the CO refused to certify the labor application.  

On appeal, BALCA (the labor certification appeals board), reversed the denial.  The Board noted that the permanent and H-1B temporary employment programs are entirely separate, and an employee can be working on one set of conditions under the H-1B visa program while a labor application for his permanent employment can be filed under a different set of conditions.

Here, the employer was following the terms and regulations under the H-1B program by employing the employee to work in two locations.  In fact, the employer produced the PWD for the H-1B employment, which contained both work locations.   For permanent employment in the future, the employer intended to employ the employee only at the Egg Harbor, New Jersey location.  The related advertisements and the ETA 9089 form are consistent in this respect.  Consequently, the Board reversed the CO decision and granted certification.

The Board did not dwell on the second basis for denial because that issue was moot.  However, the Board did suggest that the second reason was also not valid to the extent that the employer did not have an opportunity to put forth a response, because it was added by the CO only after the employer submitted a request for reconsideration.

Although this case does not create any new law, it does clarify an important concept..  The majority of permanent labor applications are submitted for foreign workers who are already working in the U.S. under a temporary work visa such as H-1B.  Knowing the differences of the terms and requirements between temporary and permanent employment is critical.   

Travel and GPA Requirements in Employer Website Posting Do Not Violate Labor Cert Regulation

The Certifying Officer (CO) denied certification of a labor application filed by an employer who was seeking to hire an "Electrical Design Engineer" after an audit.  In Matter of Stryker Medical, 2012-PER-01776 (Mar. 11, 2016), the employer's website advertisement for the position contained a travel requirement of 10% and stated a GPA of 3.0 or higher was preferred.  Such requirements are not listed in the ETA Form 9089 labor application.  Citing 20 C.F.R. § 656.17(f)(7), the CO determined that the Employer’s website advertisement included "more stringent requirements" than those listed in the labor application form.  On appeal, BALCA reversed the denial, citing Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc),  which held that the language of § 656.17(f) only applies to advertisements in newspapers or professional journals.

This case is one of a series of similar BALCA holdings on this very issue.  See, e.g., Matter of Pinnacle Technical Services, and Matter of Bahwan Cybertek Inc.  Before these decisions, many labor applications were denied on some minor technical grounds pursuant to § 656.17(f). These rulings will make PERM labor application recruiting a step closer to real world recruiting.   

Labor Certification Granted Despite Different Job Description in SWA Job Order

Any employer or employee who has dealt with labor application issues understand the importance of an accurate job description.  Imagine you posted a State job order that has a different job description than what you entered in the ETA 9089 labor application. Would it cause a denial of the labor application? 

According to a recent decision by the Board of Alien Labor Certification Appeals (BALCA), such a discrepancy does not justify a denial.  Matter of Pinnacle Technical Resources Inc., 2012-PER-00130 (January 1, 2016). 

In Pinnacle, the employer filed a foreign labor application for the position of a "Technical Recruiter." The job description in the PERM labor application is as follows:

Recruit qualified IT professionals across platforms and skills backgrounds for multiple positions; Screen candidates for application development. Interview candidates and perform orientation/training of all new candidates. Maintain client contacts database.

In the State job order, the job description is listed as:

Job Description Analyze, coordinate payroll and process benefits, new hire process, employment verification, unemployment claims, time entry/time sheet management. Manage Visa/Green Card Application process, legal issues compliance (ADA, EEO, FMLA, OSHA, etc.). Work directly with Director of Operations.

The Certifying Officer (CO) denied the petition because the State job order "contained duties that exceeded the job duties listed on the ETA Form 9089," citing the regulation at 20 C.F.R. § 656.17(f) as authority for the denial.  

BALCA reversed the denial because § 656.17(f)(6) applies only to advertisements placed in newspapers or in professional journals but not to SWA job orders.  In its decision, the Board cited Symantec Corp., 2011-PER-1856 (July 30, 2014) (en banc) and also Fidelus Technologies, 2011-PER-1635 (June 11, 2015) (applying Symantec to SWA job orders).  Newspaper ads and SWA job orders are two different recruiting requirements for PERM foreign labor application, and the Pinnacle Board decision decidedly drew a distinction between them.

PERM Labor Certification Processing Time

U.S. Labor Department posted the following PERM processing times as of 01/14/2014 -

Analyst Reviews: May 2013
Audit Review: October 2012

Reconsideration Requests: January 2014

Gov't Error Reconsiderations: Current

Labor application ads must include home office option

Modern jobs often allow employees to work from home or telecommute for various reasons.  Sometimes it is to accommodate an employee’s family needs. Other times, it is to ensure that employees stay close to customers for better services and response time.  For example, a sales professional may work from home and travel to various client sites within a region.  Technological gadgets such as smartphones and computers make telecommuting and offsite employment possible.  However, in the context of labor application, employers must include any telecommuting or home office option in the advertisements, according to a recent BALCA decision, Matter of Siemens Water Technologies Corp., 2011-PER-00955 (07/23/2013). 

A PERM foreign labor certification is required in most situations before an employer may employ a foreign worker permanently in the United States.  As part of the labor certification process, an employer must place advertisements in various media to apprise U.S. workers of the job opportunity.  Exactly what needs to be included in the ads has not been clearly defined in the labor certification regulation.  One of the requirements is that ads must not “contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” 20 CFR § 656.17(f)(7). 

In Matter of Siemens, the employer filed a labor application on behalf of a foreign national for the position of a Field Service Engineer(FSE).  The employer’s company headquarter is located in Houston, TX. However, the FSE lives in Woodlands, TX, and is allowed to work from home.  Further, he must also travel to various client sites both in the U.S. as well as in other countries.  During the labor application process, the employer therefore recruited for the position in Woodlands, including placing ads in various media.  The ads listed Houston as the work location but did not include the home office arrangement as an option.  Consequently the CO denied the application.

The employer appealed to BALCA and argued that the regulation does not require the disclosure that the work location is a home office.  Further, the employer argued that the ads did not contain any terms or conditions that are less favorable than those offered to the foreign worker.  Finally, the employer also relied on the minutes of one of the DOL Stakeholder Liaison Meetings, which specifically allowed recruiting in the area of actual employment.

However, BALCA upheld the denial of labor application, explaining that the minutes cited by the employer only supports recruiting in the area of actual employment, i.e., Woodlands, TX, but do not provide guidance regarding what geographic location should be included in the ads.  According to BALCA, listing of the job location as Houston, TX, in the ads is actually a condition less favorable than those offered to the foreign worker.  The reason is that a potential job seeker could think that he or she is restricted to working in Houston.  Since the home office option is omitted in the ads, the ads failed to inform potential job seekers that they could also work from home and other areas.   

Under Siemens, employers must include any home office option in labor application ads. In fact, since the omission of employment conditions has been interpreted on multiple occasions by BALCA as being “unfavorable” or “restrictive” to the U.S. workers, it is wise to include all employment conditions - especially those relating to travel and work location - in the ads.  These conditions may include home office, telecommuting, travel or relocation to client clients, etc.

PERM Ads and Notice of Filing do not have to include language requirement

To meet the regulatory requirements of a permanent foreign labor application (PERM application), an employer does not need to include the language requirement of the job in the pre-filing advertisements and the Notice of Filing, according to a recent decision of the Board of Alien Labor Certification Appeals (BALCA). Matter of Architectural Stone Accents, Inc., 2011-PER-02719 (July 3, 2013).  The Board held that employers only need to include enough details in the ads to apprise U.S. workers of the job opportunity.

Before hiring a foreign national to fill a permanent job opening, a U.S. employer must first test the job market through the labor certification process. To test the job market, the employer must conduct a series of pre-filing recruiting activities including placing advertisements in newspapers and posting a notice at the place of employment. The labor application will only be certified if there is no qualified U.S. worker who is able, ready and willing to take the job.

How much information should be included in the advertisements and Notice of Filing has been a subject of much controversy. The regulation requires that the advertisements must “[p]rovide a description of the vacancy specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 8 CFR § 656.17(f)(3). But it is unclear how much details are required to sufficiently apprise U.S. workers of the job opportunity.

In Matter of Architectural Stone Accents, the employer filed a labor application to sponsor a foreign national in the United states for the permanent professional position of “Production Supervisor”. In the ETA 9089 labor application, the employer specified that the ability to speak Spanish is a job requirement for this position. However, the employer failed to include this language requirement in the Notice of Filing. Consequently, the Certifying Officer (CO) denied certification because the Notice of Filing posted by the employer is deficient pursuant to 20 C.F.R. § 656.17(f)(3). The employer asked for reconsideration, arguing that the regulation does not require that the language requirement be included. Further, omission of the language requirement should actually have encouraged more job applicants to apply. However, the CO declined to reverse the denial. The employer appealed to BALCA.

On appeal, BALCA considered the issue of whether or not the language requirement must be included in the Notice of Filing (and also PERM Ads).  Initially the Board found that the NOF serves two purposes - to recruit U.S. workers, and also to provide a method for others employees and interested persons to provide information to the CO about an employer’s application. Although the requirements (relating to the contents) are similar for both the job advertisements and NOF, there are some slight differences between the two. For example, the rate of pay must be included in the NOF. 20 C.F.R. § 656.10(d).

The Board held Section 656.17(f)(3) does not require that all job requirements be listed on an advertisement. Specifically, the regulation only requires that an advertisement provide enough details “to apprise the U.S. workers of the job opportunity for which certification is sought.” In fact, in a FAQ provided by the Department of Labor’s Employment and Training Administration, it states that “[t]he regulation does not require employers to run advertisements enumerating every job duty, job requirement, and condition of employment. As long as the employer can demonstrate a logical nexus between the advertisement and the position listed on the employer's application, the employer will meet the requirement of apprising applicants of the job opportunity.”

Hence, BALCA concluded that PERM advertisements and NOF must only be specific enough to apprise the U.S. workers of the job opportunity.  Neither Section 656.10 nor Section 656.17(f) requires that the NOF list every job requirement. In the instant case, the Board examined the NOF and held that the omission of the Spanish language requirement does not violate the regulations, as “overall the text of the NOF was sufficient to apprise U.S. workers of the job opportunity.”    Therefore, the Board reversed the CO’s decision and certified the employer’s labor application. 

In sum, PERM ads and Notice of Filing generally do not have to include the language requirement of the position.  However, it is conceivable that this general rule does not apply in certain situations.  For example, if an employer is hiring an interpreter or translator, it is expected that the specific language proficiency be included.  Otherwise, the job descriptions would not be specific enough to apprise potential U.S. job seekers of the job opportunity.  

LiveJournal Tags: PERM Ads,Labor Application,labor certification,BALCA,Employment based-immigration,employment visa

Ad Requiring a BA or MS Degree OK for Multiple-Opening Labor Certification

In a recent decision by BALCA, the Board held that the advertisement used by the employer for multiple openings was not confusing or misleading, and would not prevent qualified U.S. workers from applying.   “Requires a BA/BS or MA/MS degree or equivalent in Computer Science, Engineering, Physics, Math, Information Systems, Business or related field,” is the language used by the Employer in Matter of Microsoft Corp., 2011-PER-00789 (Apr. 12, 2013).  Such language is acceptable to support a labor certification filed for the position of a “support engineer” which required a Bachelor’s degree in Computer Science, Engineering, Physics, Math, Information Systems, Business or a related subject. 

BALCA Affirms Denial of Labor Application Where Advertising Required Less than the Actual Requirements in ETA Form 9089

"Employer has violated 20 C.F.R. § 656.17(f)(3) by not specifically  apprising U.S. workers of the job opportunity.    The position advertised to U.S. workers stated a high school diploma was required, while the ETA Form 9089 required more education.[Bachelor's degree]   Employer argues  this would only be an issue if the job advertised to U.S. workers had more stringent requirements than those listed on the ETA Form 9089.    However, that is not what § 656.17(f)(3) requires.  U.S. workers viewed different requirements than those listed on the ETA Form 9089.  Thus, the advertisement was not specific enough to apprise the U.S. worker of the job offered to the foreign worker.    If Employer had informed U.S. workers of the same job requirements which were provided to foreign workers, more U.S. workers may very well have applied.    Some qualified potential U.S.  applicants may have disregarded the advertisement because it did  not require additional education, and may have thought they were overqualified. Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Pixar, 3/29/12)

BALCA Upholds Labor Certification Denial Due to Lack of Travel Language in Notice of Filing

"Employer has  violated  20 C.F.R. §  656.17(f)(4) by including different geographical locations in the ETA Form 9089  than what was stated in their advertisements.    Employer’s ETA Form 9089 described the geographic area as Santa Clara, California, and,  'various unanticipated locations throughout the U.S.,' while the advertisement only stated Santa Clara.  Employer argues that the position did not require travel, but language was included in ETA Form 9089 to 'allow for participation in events outside of the employer’s offices.'  Furthermore, they stated that 'travel is an ancillary and purely optional requirement.'  However, this still violated §  656.17(f)(4). U.S. workers viewed  a different  geographic location than that listed on the ETA Form 9089.   Thus, the advertisement  did not clearly apprise U.S. workers of the geographic location for the job opportunity, even if the ETA Form 9089 did not mean that travel was required.    If Employer had informed U.S. workers that the job included 'various unanticipated locations throughout the U.S.,'  more U.S. workers may very well have applied.  Some potential U.S. applicants may have been interested in the option of various locations, or the option to travel.   Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Sun Microsystems, 3/29/12)

BALCA Upholds Denial of Labor Certification Where Travel Requirements/Various Job Locations Not in Ads

"Employer has violated 20 C.F.R. § 656.17(f)(3) by not specifically  apprising U.S. workers of the job opportunity.    Employer’s ETA Form 9089 included 'various unanticipated Deloitte locations and client sites nationally,' while the advertisement in The Philadelphia Inquirer did not contain what the CO termed 'travel requirements.'  Employer argues this language did not indicate travel requirements, but rather meant the position could be available in multiple geographic locations nationwide.  Regardless of whether the language indicated travel requirements or geographic locations,  Section 656.17(f)(3) was violated.  U.S. workers viewed  a different job description than  that listed on the ETA Form 9089.   Thus, the advertisement was not specific enough to apprise the U.S. worker of the job offered to the foreign worker.  If Employer had informed U.S. workers of the same job description which was provided to the foreign worker, more U.S. workers may very well have applied.    Some qualified potential U.S. applicants may have been interested in a company which could place them in different geographic locations, if that is what the language intended to convey.  Therefore, it was appropriate for the CO to deny certification of the application."  (Matter of Deloitte FAS, 3/29/12)

PERM Regular Processing Time is Current - February 2011

U.S. Labor Department's iCERT Portal posted the following PERM processing times as for 02/04/2011

Regular PERM cases are processed through this month - Feb. 2011


Analyst Reviews (Regular Cases): February 2011
Audits: January 2009
Standard Appeals: June 2008
Govt Error Appeals: Current

BALCA UPDATE ON LABOR APPLICATION APPEALS

In a recent teleconference between American Immigration Lawyers Association (AILA) and two judges of Board of Alien Labor Certification Appeals (BALCA), BALCA provides some updates on various matters including the numbers of PERM appeal cases, staffing levels, novel legal issues, etc. The following is a summary of the meeting:

For fiscal year 2008, BALCA docketed 253 PERM appeals plus 164 pre - PERM cases; Fiscal year 2009 docketed 488 appeals; Fiscal year 2010 docketed 1,656 appeals. BALCA noted that the volume has more than tripled over the past three years. As of October 18, 2010, there are 1,215 PERM appeals pending with BALCA.

Procedurally, after a case is docketed, a notice will be sent to the employer requesting for
submission of a statement of intent to proceed within 15 days. Employer will have 45 days to submit an appellate brief if the case is to move forward. But a brief is not required. Employer can rest on the case record.

The average processing time of PERM appeal in fiscal year 2010 is 120 days. However, this number does not reflect the actual processing time of each case because many cases were dropped as a result of the employer’s failure to submit a written confirmation of an intent to continue with the appeal. As discussed above, the current procedure requires an employer to file a written confirmation before the appeal will be decided. However, many employers fail to file such a notice, possibly because of the changes in their hiring needs and business plans as times goes by. Some other employers actually withdraw their appeals after the case is docketed. Finally, there are a handful of cases that BALCA actually “remand” or send back to the DOL Certifying Officer for review. For cases that require a full decision cases, BALCA is taking approximately 6 months to decide.

Generally, appeals are processed in first-in-first-out order based on the docket date (not the original labor application filing date). However, BALCA also groups cases that pertain to a common issue or trend. For example, recently it is 30 cases from 2009 that relate to the medical residency issue. Such cases may be decided faster than normal.
Employers may also identify issues and cases that require and an interpretation of the PERM regulation, or require consolidation.

Cases that involve “harmless error” standard include deficiencies in notice of filing posting, adequacies of recruitment documentation, etc. As far as hot legal issue is concerned, BALCA is considering whether a medical residency position constitutes permanent employment. Another novel issue involves the standard that must be used in (college teachers) special handling cases: recruiting of most qualified candidates versus minimally qualified standard. A related issue is whether employer preferences are allowed in selecting candidates for college faculty.


BALCA also reminded employers not to file the Request for Review directly with
BALCA. Normally after a labor application is denied, an employer may either file a request for reconsideration by the Certifying Officer who denied the case, or file a Request for Review (appeal) with BALCA. However, all Requests for Review must be filed with the DOL Certifying Officer. Even if an employer files a Request for Review directly with BALCA, the request will be sent to the Certifying Officer and will not be docketed. If an employer filed a request for review with both BALCA and the Certifying Officer simultaneously, BALCA will not act on the request until the Certifying Officer forwards the file to BALCA.

LABOR APPLICATION RECRUITING MUST NOT FAVOR FOREIGNERS

In March 2005, a new rule governing the filing and processing of labor applications for the permanent employment of foreign workers took effect. This new rule, called PERM, was promulgated by the U.S. Department of Labor to completely revamp the certification process of labor applications. It was an online system with many new features and specific regulatory requirements. There were many questions and uncertainties about the new application process for several years. After more than five years of refinement and exchange between the government and the system users, many of the initial issues have been resolved. However, there are still a number of outstanding questions that have not been addressed by the Labor Department and must be answered by the Board of Alien Labor Certification Appeals (BALCA). Recently, the Board has issued several important decisions regarding the pre-filing recruiting process. There is a common thread in these decisions: that the recruiting materials must not contain any conditions that are less favorable than what is being offered to the foreign worker.

For example, the employer in Matter of Marcel Cleaners Inc. (Feb. 16, 2010) filed a labor application for a laundry supervisor. The State Workforce Agency determined the prevailing wage for this job should be $19.04 per hour and the employer was also willing to pay this wage to any eligible applicant. As part of the recruiting process, the employer must place a job order in the state job bank for this opening so that eligible American workers may apply. The job order showed a wage range of $18.00 to $19.50 per hour. The labor application was denied by a Certifying Officer on the ground that the wage offer in the SWA job order listed a wage that was less than the wage offered to the foreign worker. The employer disagreed with the decision and filed an appeal with the Board, arguing that they usually pay a range of wages to employees depending on the particular person’s work history and abilities. The Board affirmed the denial by pointing out that the lower end of the range of wage range was $1.04 less per hour than the prevailing wage, which contradicted the attestation that the employer would pay eligible workers a wage that equals or exceeds the prevailing wage. The Board continues to point out that the regulations expressly prohibit advertisements of a wage rate lower than the prevailing wage, and the state job order is considered an advertising tool.

Similarly, in another case decided on September 1, 2009, the Board held that, not only must the advertised wage be higher than the prevailing wage, it must also be equal to or higher than the actual wage offered to the foreign worker (Thomas L. Brown Associates, P.C.) Here, the employer posted a Notice of Filing, another pre-filing requirement, with a wage that is higher than the prevailing wage but lower than the actual wage offered to the foreign worker. The Board affirmed the denial, stating that the advertisements must not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.

Finally, in Noll Pallet & Lumber Co. (Dec. 16, 2009), the Board denied labor application for a similar but different reason. Here the employer is hiring a production worker and advertised a requirement for criminal and background checks. However, such a requirement was not listed in the labor application. Again, the Board noted that labor application advertisements must not contain wages or terms and conditions of employment that are less favorable than those offered to the foreign worker. Here, the advertisements contained a requirement for criminal and background checks, which was not imposed on the foreign worker. In other words, the advertisements contained conditions that are less favorable than those offered to the foreign worker.

These decisions illustrate once again that the labor certification process is extremely complicated and great care must be taken to ensure that all legal requirements are met. Sometimes a seemingly trivial matter could result in a denial of an application and cost additional time and money.

USCIS further Expands Premium Processing for I-140 Petitions

(written on 2/26/2009)
By Paul Szeto, Esq.

Recently, the U.S. Citizenship and Immigration Services (USCIS) announced that it will expand Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include certain alien beneficiaries who have or will come to the end of their H-1B work visa status. This is a further step of the government to help foreign workers whose immigrant petitions are delayed due to the unavailability of visa numbers. Specifically, the change will allow those workers who have reached, or are reaching, their authorized stay in H-1B nonimmigrant status to employ Premium Processing Service when filing their I-40 visa petition.
Beginning March 2, 2009, alien workers who meet the following criteria will be allowed to file their I-140 visa petitions with the I-907 Premium Processing Service application:
• Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• Are ineligible to extend their H-1B status under section 106(a) of AC21.
Most of the employment-based visa petitions in the first, second and third preferences (EB1, EB2 & EB3) are eligible for Premium Processing Services with the exception of the EB1 Multinational Company Executive/Manager petitions and EB2 Exceptional Alien Petitions seeking a National Interest Waiver. These last two categories of applications must still file their petitions under regular processing.

Under the current policy from June 16, 2008, only alien beneficiaries who are in H-1B nonimmigrant status at the time of filing may request premium processing for Form I-140. The new policy expanded the service to those who are not currently in H-1B status to use the service. More foreign workers will be able to benefit from this expanded service.

Premium Processing Service provides faster processing of certain employment-based petitions and applications. Specifically, USCIS mandates 15 calendar day processing time to those who choose to use this service or USCIS will refund the Premium Processing fee and the relating case will continue to receive faster processing. The 15 calendar day period will begin when a properly completed Form I-907, Request for Premium Processing Service, is received by USCIS at the correct filing address noted on the form. A fee of $1000 is also required. Within the 15 day calendar period USCIS will issue an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation.

It is important to understand that Premium Processing Service merely guarantees that a decision will be made; it does not guarantee an approval or somehow increase the chances of getting an approval. Nevertheless, it has been our firm’s experience that payment of the $1000 for Premium Processing is worthwhile because of the extra attention and services that we receive. Designated group of personnel will be devoted to working on these cases. Inquiries are usually timely responded. Petitions, assuming they meet all requirements, are usually approved within a few days.

The new policy is no doubt good news for those who needed a faster approval of their I-140 petition to qualify to AC21 extension. Given the current retrogression of visa numbers, it is expected that many applicants will take advantage of this expanded services. One possible drawback, however, is that the processing of regular (non-premium) cases could be delayed as premium services might take up substantial amount of government resources. Interested applicants must carefully weigh their options and make correct decisions according to their specific situations.


(Paul Szeto, an Immigration lawyer and a former INS attorney, regularly writes on immigration issues. His contact info: 732-632-9888, www.szetolaw.com)