At the end of 2014, the Board of Alien Labor Certification Appeals (“BALCA”) considered what employee benefits might be considered a “term and condition” of employment that should be listed in an advertisement that is placed as part of a recruitment effort. In Matter of Needham-Betz Thoroughbreds, Inc., the employer submitted a labor certification for the position of “Farm Manager.” The case was audited and the employer explained in the audit response that the employee was given the option to live rent-free on-site at the job location. The DOL denied the case on the basis that the recruitment that the employer conducted failed to inform potential applicants of the opportunity to live at the job site for free. Under the PERM regulations, advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL determined that the chance to live rent-free at the job site was a term and condition of employment that U.S. workers should have been apprised of. The employer appealed the denial. BALCA reviewed contradictory case law and found that free housing was a term and condition of employment that should have been listed in the recruitment. Specifically, BALCA stated that “the benefit of free housing is not a standard benefit attached to a job opportunity. Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days.” Through this statement, BALCA recognized that health insurance and vacation days are not benefits that must be listed in advertisements that are conducted as part of a recruitment effort. However, more unusual benefits, like free housing, should be stated. This case provides important information about the types of benefits that an employer must list in the recruitment it conducts for labor certification cases.
On January 13, a bipartisan team of senators reintroduced legislation now being called the Immigration Innovation Act or I-squared, to reform the immigration system for highly skilled workers. The bill was introduced back in 2013 but failed to move through Congress. While comprehensive immigration reform appears to be dead in the water, many tech lobbyists are hoping that a tech targeted bill could gain traction even in a Congress controlled by Republicans. The highlight of the bill is to increase the number of H-1B visas to 115,000 and allow the annual cap to increase up to 195,000, depending on demand. Also, spouses of people with those visas (H4) would also be able to work in the U.S. (a nod to President Obama’s Executive Action). AILA has shown its support for the legislation.
The Department of Homeland Security (“DHS”) expects to launch the “Known Employer” pilot program by late 2015 which is designed to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers. The pilot program is designed to make adjudications more effectively and less costly and reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.
U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) would jointly implement the pilot program. A goal would be to expedite or otherwise facilitate legitimate cross-border business travel along the northern border ports of entry. Doing so is a binational commitment under the North American Free Trade Agreement as well as the U.S.-Canada Beyond the Border initiative.
We will provide additional information about the “Known Employer” program in the coming months.
In a recent case, U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014), the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) spent tens of thousands of dollars (think daily salaries of the investigators, the Judge and his/her staff) to collect $500 from an employer for two I-9 violations. Keegan Variety is a mom-and-pop convenience store in Van Buren, Maine on the Canadian border. The store employed only two people – a mother and cousin of the owners. While we understand that regulations regarding employment verification and work authorization must be followed, there is something to be said for wasting the taxpayers money to prosecute small family owned businesses. Maybe a written warming would have been appropriate in this situation. However, the moral of the story for each and every employer is that obviously the U.S. government is not above wasting the taxpayers’ money to prosecute you for violating I-9 regulations, no matter your size. For further information, please contact us for more information on how you can remain I-9 compliant. To read the case I am discussing above, please see: http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume11/1238.pdf.
The February Visa Bulletin has been released by the Department of State and EB3 worldwide and Philippines saw rapid advancement again. India EB2 also moved for the first time in several months. The bulletin contained predictions about continued forward movement in EB3 categories but, indicated that “corrective” action aka retrogression may be coming.
If your H-1B employee is not properly terminated you may be liable for the remainder of their prevailing wage. Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006), established the requirements to effect a bona fide termination of H-1B employment and end employers’ obligations to pay wages promised under LCAs: (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled, and; (3) offer to pay the reasonable cost of return transportation to his or her home country. In almost all situations these steps should be followed to protect your company from paying back wages.
However, there are situations where an employer will not be liable for wages after termination even when it fails to follow the above three steps. A recent Administrative Review Board case Kuanysh Batyrbekov v. Barclays Capital outlined one such situation, when there are multiple H-1B employers. In this case, it was found that a bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified the H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a “change of employer.”
Thus, if you have terminated an H-1B employee and they have secured another H-1B petitioner, you no longer have an obligation to pay them their prevailing wage for the remainder of their LCA.
The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for STEM jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed.