PACKAGING COMPANY FINED THOUSANDS FOR BACKDATING I-9s

OCAHO ordered a California-based Liberty Packaging Inc. to pay $12000 for acting in bad faith by backdating 18 I-9 forms following a NOI (Notice of Inspection). The fine was lowered from $17000 by an Administrative Law Judge because they were a small employer with no previous violations.
Immigrations and Customs Enforcement became suspicious because markings on some of the forms implied that they had been completed after the respective date of hire. The case is USA v. Liberty Packaging Inc., Case Number 14A00027, before the U.S. Department of Justice’s Office for Immigration Review, Office of the Chief Administrative Hearing Officer (OCAHO).

USCIS Teleconference Yields Additional Information About New H-4 EAD Regulation

On Thursday, February 26, 2015, USCIS held a teleconference in order to provide more information about the recently published regulation extending employment authorization to certain H-4 visa holders who have reached a certain point in their green card application process.

The purpose of the regulation is to to provide employment authorization for H-4 spouses if their spouse who is working on an H-1B visa has an approved I-140, or has extended their H-1B status beyond the 6-year limitation due to the fact that they have a green card case that has been pending for at least 365 days.

During the course of that call, the following information was provided:

1. The regulation will take effect on May 26, 2015. No applications will be accepted prior to that date. Any application sent to USCIS on that date will be rejected and must be re-filed after May 26th.

2. A new I-765, Application for Employment Authorization (“I-765″) has been prepared (though not yet published) which will need to be used to file the application.

3. Upon approval, the applicant will be issued an Employment Authorization Document (EAD), which is a card that looks much like a US driver’s license. It will have an expiration date on it.

4. The addresses to which applications under this regulation will be published closer in time to the May 26th filing date.

5. USCIS will be publishing a FAQ which will provide answers to a number of questions about the new regulation. That will be published closer to May 26, 2015. A number of callers asked questions which the panel on the Teleconference was unable to answer. Many of these will be addressed in the FAQ.

6. There is no limit on the number of cases which will be accepted for filing during the course of a year.

7. USCIS expects approximately 179,000 cases to be filed in the first year after the regulation become effective.

8. The processing time for the I-765 application is 90 days, as with all other I-765 applications.

9. USCIS does not currently expect applicants will have to go to an Application Support Center (ASC) for a biometrics appointment in order to process the cards. The applications will be processed using the photos submitted with the application.

10. The panel could not answer the question of whether the applicant has to be in the US in order to file the application or remain in the US to have it processed. This will be answered in the FAQ.

11. The validity period of the EAD card will match the validity period of the H-4 visa holder’s H-4 visa status.

12. The EAD does not replace the H-4 status. The applicant will be required to maintain H-4 status once the EAD is approved.

13. The panel could not answer the question of what will happen to the EAD if an H-4 is issued an EAD card and then the principal H-1B holder changes jobs and the prior employer’s I-140 is revoked. This will be addressed in the FAQ. One of the options for approving the I-765 is that the applicant’s spouse has a valid I-140. If the I-140 is revoked after the EAD card is issued, the question arises about what happens to the validity of the EAD card issued based on the now revoked I-140.

14. If an H-4 holder is eligible for an EAD card because their H-1B spouse has an approved I-140, the I-140 must remain valid in order for the H-4 for file an I-765. If the I-140 has been revoked, the H-4 is no longer eligible to receive an EAD.

15. The EAD does not include travel authorization as EAD cards issued in connection with Form I-485, Application to Adjust Status do. The applicant will need to obtain an H-4 stamp in their passport in order to continue to travel in and out of the US.

16. An eligible individual can file a form I-765 application concurrently with an H-1B extension and I-539 Application to Extend Status. The H-1B and I-539 will be adjudicated first, and if approved, the processing of the I-765 will then start. The I-765 will not be started until the I-539 is approved.

17. Premium Processing will not be available for form I-765, Application for Employment Authorization.

18. The I-765 Applicant will be required to prove eligibility, which may include submitting a copy of the approved I-140, prior H-1B approval notices, and maintenance of status.

19. The I-765 under this regulation can only be filed through the paper process; it cannot be filed online.

20. An H-4 holder cannot begin working until they have received the actual EAD card. Filing the application and receiving a receipt notice are not sufficient to begin working. The applicant must have the actual EAD card in hand in order to start working.

21. This is a permanent regulatory change. There are not plans to take this program away in the future. It is not specifically tied to the Executive Action currently being challenged in lawsuits against the President’s Executive Action because it is not an exercise of the President’s executive authority – the option was created by regulation and stands as law in the US at this time.

H-4 EAD Rule Released

At long last, the DHS has published the final rule (regulation) allowing certain H-4 holders to apply for an EAD card. Eligibility requires the H-4 holder’s spouse to have an approved I-140 or to have already been approved for a 7th year extension under the AC21 rules. The rule goes into effect on May 26, 2015. Applications may not be filed early.

District Court Orders Granting of H-1B Petition Based on Equivalent Degree

There might be a shakeup in how USCIS adjudicates educational equivalency. Lately, there had been a trend of Officers cracking down on degrees that were not “in-line” with the beneficiary’s proposed specialty occupation. In Raj and Company v. USCIS, the U.S. District Court for the Western District of Washington at Seattle bucked this trend and recently found that the position of “market research analyst” met qualifications as a “specialty occupation,” stating that the regulations do not “restrict qualifying occupations to those for which there exists a single, specifically tailored and titled degree program.” Further, the position required as a minimum for entry a specialized degree in “market research,” or where no such degree is available, an equivalent technical degree accompanied by relevant coursework.

However, this will not lead to a free-for-all to anyone with a bachelor’s degree. The Court noted that the patently specialized nature of the position sets it apart from those that merely require a generic degree i.e. when employers are not particularly concerned with what type of bachelor’s an applicant has achieved. It is a positive turn of events that the courts understand that there is not a specific degree for every position.

Federal Court’s Injunction May Not Impact Business Measures

As many of you read earlier this week, a Federal District court issued an injunction barring the implementation of portions of President Obama’s Executive Action. The Court’s ruling was based upon the Administrative Procedure’s Act (APA). It is not believed that the Court’s ruling will have any impact on the business measures announced by President Obama. The reason, is that the business measures were not being implemented by decree but, were directives to issue regulations consistent with the APA. We fully expect the regulatory process started by the President’s Executive Action to continue in spite of this injunction.

Updates to Visa Appointment System at the U.S. Consulates in Canada

Recently, applicants who hoped to obtain a visa stamping appointment at a U.S. Consulate in Canada were unable to schedule appointments after February 13, 2015. The Department of State reported that this was due to the fact that the U.S. Consulates in Canada were upgrading their visa appointment system. The updates were complete on February 1, 2015. While the transition to this new system was occurring, appointments were frozen between February 13, 2015 and April 1, 2015. Now that the upgrade is complete, the U.S. Consulates in Canada are making more appointments available. The release of these appointments is expected to continue through the coming weeks. If you are interested in attending a visa stamping appointment in Canada, we suggest that you frequently check visa appointment availability to review available appointment dates and times.

March Visa Bulletin released

The Department of State has released the March Visa Bulletin and several categories including EB2 India and most EB3 categories saw significant forward movement.

By |February 10th, 2015|Green Cards|0 Comments|

MN Staffing Company Fined $225K for I-9 Violations

Employer Solutions Staffing Group II (ESSG), a large MN company with six to eight thousand temporary employees on its payroll, was recently fined $225 for “creating false attestations” on Section 2 of the I-9. Specifically, ESSG reviewed copies of the employee’s I-9 documents “without ever seeing the individuals whose documents they examined.” This is a clear failure to comply with the I-9 regulations as it is Section 2 that is the core of the employment verification process. This case is important for many reasons. First, it is further evidence that employers must be diligent when completing their I-9s. This is especially true for staffing companies who may employ remote hires. Employers – You must always review the original and unexpired identify and work authorization documents of each and employee and this must be done in the presence of the employee. Otherwise, how can you properly attest that you have done so? Second – E-Verify will not excuse such a failure to comply. In fact, it is a requirement of the E-verify system that you properly complete an I-9 before you run an E-Verify query. Thus, the affirmative defense provided by the regulations would be unavailable to an employer who creates a false attestation on an I-9. Finally, notwithstanding that no unauthorized workers are hired, this type of failure to comply with I-9 requirements is an exceedingly serious offense that could lead to a maximum penalty of $1100 per violation as well as other sanctions. In fact, in this case, ESSG was fined $935 per violation.

DOL releases program statistics

The DOL has released data on all of its FY 2013 programs including, PERM and prevailing wage determinations (PWD).

IT jobs growth and salary increases reported

According to industry reports, the outlook for IT job growth and salary increases is promising in 2015. This economic news makes the prospects of meaningful business immigration reform i.e. More H-1b visas and retrogression relief more promising.