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by Carl Shusterman

USCIS Should Follow BALCA on Posting Requirement

Can a Saturday or a Sunday be a "business day"? 

It depends on who you ask.  The U.S. Department of Labor says yes, while the Department of Homeland Security thinks otherwise.  What's an employer to do?

On October 12, the Board of Alien Labor Certification Appeals (BALCA) issued a decision "In the Matter of Il Cortile Restaurant".  This case involves a PERM application for a chef, and has been bouncing around in the Labor Department (DOL) for three years.

In May 2007, the employer posted a Notice of Filing (NOF) of a PERM application for ten consecutive days.  The Certifying Officer (CO) denied the PERM application citing a DOL regulation which requires Notices of Filing to be posted for ten consecutive "business" days.  The restaurant explained to the CO that it was open for business every Saturday and Sunday, that these days were the busiest times of the week and that all employees are required to work on weekends.

However, the CO was not persuaded.  He denied the PERM application on the ground that "for the purposes of the Permanent Labor Certification program, business days as related to the posting of the NOF are defined as Monday through Friday, excluding weekends and Federal holidays."

The CO forwarded the case to BALCA, arguing that defining business days as actual days that the employer is open would make the administration of the NOF provision unfeasible.

BALCA started, wisely enough, by examining the DOL regulation, 20 C.F.R. 656.10(d)(1)(ii), which imposes the requirement that the NOF be posted for ten consecutive business days.  Does the regulation define the term "business days"?  No.

Next, BALCA examined the purpose of the regulation. Here, they looked to the Federal Register notice which announced the publication of the regulation, and concluded that "the purpose of the Notice of Filing requirement is to ensure that the employer's employees and other interested persons are notified that it is filing an application for a permanent alien labor certification."

BALCA went on to consider whether the purpose of the regulation would be accomplished by considering Saturdays and Sundays to be business days: "If the Notice of Filing is posted for ten consecutive days when employees are on the worksite and are able to see the Notice of Filing, the purpose of the Notice of Filing requirement is fulfilled.  As long as an employer has employees working on the premises on a Saturday, Sunday or holiday, those days are business days for the purposes of complying with the Notice of Filing posting."

Based on this reasoning, BALCA vacated the CO's denial of the PERM application on the ground that "fundamental fairness" requires that the employer be given the opportunity to demonstrate that Saturdays and Sunday are business days for the restaurant.

All of which brings us to the DHS, specifically the USCIS.

Not all occupations are subject to the general requirement that employers must submit a PERM application.  Specifically, according to a DOL regulation, when an employee is a member of a shortage (aka "Schedule A") occupation, no PERM application is required.  There are only two Schedule A occupations, Registered Nurses and Physical Therapists. When sponsoring an RN or a PT for permanent residence, an employer skips the DOL and submits a visa petition to the USCIS.  The employer is subject to the same requirement that a Notice of Filing be posted for ten consecutive business days. 

Here is the rub: The USCIS, like the CO in "In the Matter of Il Cortile Restaurant" has always maintained that weekend days were not business days for purposes of ten consecutive business day regulation.  Now that the BALCA has ruled that if the employer is open for business on weekends, Saturdays and Sundays are business days, the USCIS should conform its interpretation of the DOL regulation with BALCA's.

For years, the USCIS has denied visa petitions submitted by hospitals (which are open seven days a week, 52 weeks a year) on behalf of Registered Nurses and Physical Therapists on the ground that weekend days do not count as business days.

This policy has had serious negative immigration implications particularly for RNs since, for the most part, RNs have no underlying nonimmigrant status.  When USCIS denied their I-140s, the agency also denied their I-485s leaving all of them unlawfully in the U.S.  or placing them in removal proceedings.  Further, the USCIS maintains that the RNs affected may not reapply for adjustment of status under section 245(k).  This is because the agency interprets the word "status" in section 245(k) to mean "nonimmigrant status", and most RNs lack any underlying nonimmigrant status.

Therefore, it is a matter of "fundamental fairness" that the USCIS not only change its policy toward what constitutes a "business day" for NOF purposes, but that the agency, on its own motion, reopen all improperly denied I-140 visa petitions and I-485 applications for adjustment of status for RNs, PTs and their family members who were prejudiced by the USCIS' improper application of the law.

October 13, 2010