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1/3/2006 IMMIGRATION ALERT:
REPORT:
USCIS TO ALLOW STAFFING COMPANIES TO POST AT HQ
A change in policy issued by USCIS via an AILA Q&A appears to clear the way
for staffing companies to revert to prior practice and post Notices of the
Filing of Applications for Permanent Residency at staffing companies'
headquarters.
Over the last year, the USCIS had deviated from long-standing Department of
Labor and legacy-INS policy that allowed posted Notice at the companies' HQ.
Instead, USCIS was compelling staffing companies to post Notice at the
physical place where the service was actually being performed. For
healthcare staffing companies, the USCIS took this to mean the actual
healthcare facility or hospital. This interpretation was a great burden on
staffing companies who relied on the flexibility of HQ-posted Notice.
Several times over 2005, HLG lobbied Acting Director Robert Devine about
this issue. HLG's position was that the Service ought to defer to
long-standing DOL interpretation that allows staffing companies to post at
companies' headquarters.
As per a late December Q&A with AILA, it looks as if the USCIS will change
policy and revert to to the DOL interpretation and to prior practice.
Full transcript of the Q&A:
AILA was informed by a Service Center that it has received direction from
HQ to hold adjudication of Schedule A cases for roving employees or
employees where the actual place of employment is not yet defined, such as a
nurse or physical therapist, pending a instructions from HQ on where to post
the notice to employees of filing of the Schedule A application.
1. Can you please confirm that adjudication is being postponed pending HQ
instructions?
Response: We have instructed the Centers to no longer deny I-140 Schedule A
cases on the posting issues only as we are seeking a resolution for handling
them. However, there is no official hold on the cases.
2. How should attorneys and petitioners handle pending cases where an RFE
has requested evidence that the posting was at the location where the
beneficiary will be providing services in cases where the location is not
yet known? Should attorneys respond requesting further time to present
evidence after HQ instructs the field?
Response: Attorneys should respond as best they can. Once the response to
the RFE is received the response to question number one above applies.
3. If a Schedule A petition for a roving employee has been denied because
the posting was not at the actual place where services will be provided, and
USCIS decides that posting is satisfactory if accomplished at the employer's
main office or the branch where the roving employee is based, should
attorneys file appeals/Motions to Reopen now? Will USCIS reopen on its own
motion?
Response: We are unable to address this question until we have a resolution
to the posting issue.
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