HLG is pleased to announce that Juan Flamand has joined the firm as a Senior Associate and will manage the firm’s Phoenix office. Juan has over 10 years of business immigration experience. He will handle a mix of corporate and individual matters.
On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).
HLG is pleased to announce that it has opened an office in Los Angeles, California. Senior attorney Cynthia Perez will be the managing attorney. The office will handle a variety of corporate and family based immigration cases. The office is located downtown at 4221 Wilshire Blvd.
The Department of State (DOS) has released the September Visa Bulletin. The Dates for Filing chart remained unchanged however, once again, the USCIS has determined not to honor the dates for I-485 filings. The Final Action Dates chart was largely unchanged however, the EB3 category for the Philippines, India and all other countries showed slight forward movement. The DOS also announced that it has made the final calculation for FY 2016 preference limits and the Employment based limit was 140,338 with the per country limit set at 25,644. We are expecting better news in the October bulletin however, legislative relief for retrogression is baldy needed.
The Board of Alien Labor Certification Appeals (“BALCA”) recently overturned a denial after considering whether the employer had established by the totality of the circumstances that recruitment conducted for a position sponsored through labor certification demonstrated that the position had been open to U.S. workers. The employer sponsored the position of “Preschool Teacher” for labor certification. In drafting the Form 9089, the employer stated that the minimum education requirement was a “foreign equivalent of a Bachelor’s degree.” The Certifying Officer (“CO”) denied the case on the basis that the position was not open to U.S. workers because “by definition, a foreign degree equivalency requirement makes it impossible for most U.S. workers to qualify for the job opportunity.” The employer appealed the denial and stated that the position’s actual education requirement was a Bachelor’s degree or foreign equivalent. In reviewing the case, BALCA noted that it most consider the content of the employer’s recruitment efforts, not the content of the Form 9089. In addition, it specified that a totality of the circumstances test would be applied to establish whether a position was open to U.S. workers. BALCA stated that the recruitment for the position noted that a domestic Bachelor’s degree would be acceptable and determined that no U.S. worker was rejected for possessing a domestic Bachelor’s degree only. Consequently, it determined that the position had been open to U.S. workers under a totality of the circumstances test and overturned the denial. This case provides information regarding the legal standard that will be used to determine whether a position sponsored through labor certification is open to U.S. workers.
On August 1, 2016, a Dept. of Labor Judge ordered ME Global Inc. to pay a former engineer almost $183,000 in back wages. The Judge determined that the employer did not properly notify immigration officials when it fired the H-1B worker in 2008. As you probably know, immigration laws require employers to notify USCIS of the termination of H-1B employees.
Judge Almanza noted that the statute of limitations clock starts on the last date the employer failed to fulfill a condition of the labor condition application and therefore ME Global had “benched” their employee, placing an H-1B worker in a nonproductive status. This meant there was a continuing violation and the employee’s complaint to the wage and hour divisions was timely as long as it was filed within one year of when he left the U.S.
This holding is just another reminder that when an H-1B employee leaves your employment you must notify USCIS and withdraw the H-1B petition your company filed on their behalf.
BALCA recently determined that a minor typographical error in the name of an employer on a state-workforce agency job order did not discourage U.S. workers from applying when the employer was known by a different trade name. The employer submitted a labor certification for the position of “Food Service Manager.” In the job order, the employer listed its name as “SWOWII, Inc.” However, the employer’s actual name was “SWDWII, LLC.” The Certifying Officer denied the case on the basis that this error would harm the ability of U.S. workers to identify the employer and would result in the Office of Foreign Labor Certification being unable to confirm whether the employer appropriately engaged in recruitment. BALCA reviewed information submitted by the employer that showed that it was a franchise of Saladworks and generally conducted business as “Harmony Saladworks” or “Harmony Plaza Saladworks.” BALCA determined that “because the employer’s legal name has little to do with the employer’s public identity, . . . a minor typographical error . . . on the job order would do little to confuse potential applicants about the employer’s identity.” Consequently, the denial was overturned. While employer’s should ensure that they correctly identify their name on all recruitment documentation that is conducted as part of the labor certification process, this decision does provide support for the idea that an error in the spelling of a name must actually cause potential applicants to be unable to identify the employer.
In a time honored tradition designed to foster votes in the upcoming election, we are seeing yet another immigration bill offered, this time by Rep. Issa from the San Diego area. The bill primarily changes the rules impacting dependent users of H-1b employers and changes the threshold wage for exemption from $60,000 to $100,000. Just like every other immigration bill being introduced, it has no chance at being passed this year. My problem with the bill is not its content. Frankly, no objective person could argue that the exemption salary floor which has been in place since 1998 is at the correct level. My issue is with yet another immigration proposal that will never be debated, never voted on it, and never has a chance to bring about change.
On July 8, 2016, Bill Pascrell Jr., Democrat – New Jersey, introduced legislation Thursday designed to “overhaul” the H1-B and L-1 visa programs. H-1B and L-1 Visa Reform Act of 2016, or H.R. 5657. The bill is being introduced under the guise of protecting workers and cracking down on foreign outsourcing companies that “take high-skill jobs away from Americans.”
Two of the more concerning provisions of the bill include: Requiring employers to conduct a labor market test before hiring H-1B workers and prohibiting companies from hiring H-1B employees if they employ more than 50 people and if more than half of their workers are H-1B and L-1 visa holders!
The bill is co-sponsored by Rep. Dana Rohrabacher, R-Calif., who previously introduced a similar version of the measure in 2010. So, hopefully like last time this bill does not gain enough traction in Congress to move forward. Nonetheless, it is still worrisome to hear that these changes are be given any kind of consideration.