The Department of State has announced that they have the technical issues that have marred visa processing for the past 3 weeks fixed and that the back-log should be cleared by the middle of next week.
In a letter made public recently, IBM responded to an inquiry made by Senator Grassley regarding the use of H-1b workers in light of lay-offs by IBM in Senator Grassley’s home state of Iowa. Senator Grassley has been an outspoken critic of the H-1b program and legal immigration in general so his inquiry to IBM was not surprising and, from my point of view perfectly appropriate. The spirit of the H-1b program, if not the law, should not permit H-1b workers to replace laid-off US workers. As part of their response, IBM sought to distance itself from others who heavily use the H-1b program and have a much higher percentage of H-1b workers. IBM puts its % of H-1b workers at 10% or less. In calling for an expansion of the H-1b program, IBM reminded Senator Grassley that the current limitations of the program were leading to the loss of US jobs and greater outsourcing. Given his historical position on the H-1b program, it is doubtful that Senator Grassley was in any way, swayed by the arguments being made by IBM but, it is nice to see US companies defend their H-1b programs.
As H-1b cap rejections arrived in our office en masse last week and this week, it was quite a sobering sight. Selfishly, for our firm because those rejected boxes represented literally 100’s of cases that would never be fully billed, never turn into green card cases, and never refer their friends. For the U.S. companies that had interviewed the candidates and selected them as being the best person for the job, they were losing out on a talented new employee. For the H-1b worker, many were losing out on the dream of working in the U.S., joining friends or family that may have immigrated here previously, or simply not realizing the adventure of a new career in a new country. To the U.S. in general, the rejections of some 150,000 plus professional workers, many with STEM degrees, the economic loss is staggering. CNBC ran a nice article about a month ago on the economic loss caused by a broken US immigration system. If you haven’t read it, check it out. Regardless of one’s perspective, rejected petitions represent a loss.
Department of State Provides Update in Regards to the Technical Problems with the Consular Consolidated Database
The Department of State (“DOS”) provided an update in regards to the technological issues it is experiencing with its Consular Consolidated Database. The Bureau of Consular Affairs is continuing to work to remedy this issue. As of June 22nd, 22 consulates have been reconnected. This represents about half of the non-immigrant visa volume. The DOS will continue to reconnect Consulates as this technical problem is resolved. However, biometric data is still not available. The DOS is issuing visas for urgent and humanitarian travel. The DOS has not provided any further update in regards to when it expects the database to be fully operational again. At this time, we are suggesting that individuals delay making travel plans until these technical issues are solved.
A few weeks ago the United States District Court denied Save Jobs USA’s motion for a temporary injunction of the H4 EAD program. Save Jobs USA has now moved for judgment on all counts in its complaint. Save Jobs USA continues to argue that the new rule creates more competition for U.S. employees from H-1B workers and potential competition from H-4 visa holders with the new EAD. Save Jobs USA also alleges that the rule goes beyond DHS’s authority because the regulatory definition of the H-4 status doesn’t provide any permission to work. We will provide more updates as they become available.
On June 12, 2015, the Department of State announced that it is experiencing technical problems with its Consular Consolidated Database (“CCD”). These difficulties are not related to the issues that were experienced last year with the CCD. The technical glitch is not specific to any country, visa category or citizenship document. The Department of State has reported that a hardware failure occurred on June 9th that stopped biometric clearance requests from moving from the Consulates to the CCD. In addition, the system that is used to perform national security checks is experiencing technical difficulties. Consequently, the Department of State is not able to print visas and other travel documents. Due to these delays, a backlog in visas has developed, which will cause further delays even once this system is fully operating again. The Department of State has not provided information about when these technical issues will be resolved. It has stated that it will attempt to assist non-immigrant visa applicants who have urgent humanitarian travel needs to obtain a visa. However, the Hammond Law Group suggests that individuals delay making travel plans until these technical issues are resolved.
The Department of State has released the July Visa bulletin and there were no surprises. As expected the EB3 Philippines became unavailable and will likely remain that way until October. India EB2 did not progress and has likely seen its last forward movement until October. EB3 for all other countries saw another 6 week advance and is moving ever closer to current.
BALCA Upholds Denial of Labor Certifications Where Employer Failed to Provide a Signed Recruitment Report
In Matter of New York City Department of Education, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether a typewritten name could represent an electronic signature. The employer submitted labor certifications for the positions of “Students with Disabilities (Special Education) Teacher.” The cases were audited and the employer provided a recruitment report with the typed name of the employer’s signatory. The cases were denied on the basis that the employer failed to provide a signed recruitment report. The employer argued that the omission was not material and that the regulations do not require a handwritten signature on a recruitment report. In reviewing the requirements under 20 C.F.R. § 656.17(g)(1), BALCA noted that there is no distinction between handwritten and electronic signatures. However, BALCA also stated that there was no evidence that the employer intended the typewritten name to constitute a signature because the employer admitted that there was a “physically-signed copy of the report which was inadvertently omitted from the audit response.” Furthermore, BALCA noted that the typewritten name was not “preceded by the customary ‘/s/’ for electronic signatures, [which] suggests that the [signatory] did not execute or adopt the typed word with the intent to authenticate the document.” Consequently, BALCA upheld the denial of these cases. However, it did state that “there is indeed no indication [in the federal regulations] that recruitment reports, even those delivered by mail, require original signatures.” Through this statement, BALCA seems to indicate that original signatures are not required on recruitment reports. Given the miniscule distinctions made in this case though, the Hammond Law Group suggests that employers provide handwritten signatures on all recruitment reports to avoid the possibility of denials.
The Department of Justice (DOJ) reached an agreement on May 27th with a farm labor contractor, in Bakersfield, California, Luis Esparza Services, Inc. (LES), which resolved claims that LES discriminated against individuals because of citizenship status in violation of the Immigration and Nationality Act (INA). The agreement involved the largest civil penalty to date that the DOJ has ever secured for a discrimination claim under the INA.
As determined during the DOJ investigation, LES required work-authorized non-U.S. citizens to produce documents issued by the Department of Homeland Security (DHS) as a condition of employment, but did not require the same of U.S. citizen workers. This type of additional documentation burdens placed on some employees and not others is prohibited under the anti-discrimination provisions of the INA.
The settlement agreement provided that LES would pay $320,000 in civil penalties; compensate a worker who lost wages due to LES’s employment eligibility verification practices; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility verification policies; and be subject to monitoring of its employment eligibility verification practices for three years.
This case serves as a reminder to all employers that they should have standard operating procedures in place for the completion of Form I-9s that do not discriminate based on national origin and must be followed by everyone involved in the Form I-9 process.