Employer Pays $215K to Settle Citizenship Discrimination Case

Louisiana Crane & Construction LLC, which provides oilfield services, has agreed to pay $165,000 in civil penalties and create a $50,000 fund to pay workers who lost wages because of the company’s policy requiring workers who were not U.S. citizens to provide additional documents during the Form I-9 employment verification process. The company will also be required to conduct anti-discrimination training and be subject to monitoring for two year.
The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from requiring additional documents from workers during the employment eligibility verification process based on their citizenship status
This case is serves as evidence that the Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is continuing to ramp up its activities thanks in part to a 2010 agreement requiring the U.S. Citizenship and Immigration Services (USCIS) to refer discrimination matters to the OSC, along with any relevant information from the E-Verify system. As such, employers should be very careful to properly follow the employment verification regulations regarding proper completion of a Form I-9 and use of the E-Verify system.

The case is U.S. v. Louisiana Crane Co. LLC, case number 14B00102, before the U.S. Department of Justice’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer.

Attorneys can now pay the USCIS Immigrant Fee

USCIS has altered the process for paying the USCIS Immigrant Fee through its electronic immigration system (ELIS). The revised process reduces the amount of information that an immigrant must provide. Furthermore, it allows anyone, including an employer, attorney, or accredited representative, to pay the fee.

BALCA Determines that Employer-Provided Survey is Acceptable Without Arithmetic Mean

Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage.

Card Production Delays

There has been reported delays in the production of I-765 and I-485 cards. This is due to the USCIS card production facility in Corbin, KY undergoing maintenance. All card production has been switch to another facility and of course that facility is now backlogged. If you are expecting an I-765 or I-485 card from a recently approved petition expect an additional 2-3 week delay in receiving your card in the mail. USCIS expects to resolve this issue sometime in September.

PERM Denials Soar !

The DOL recently released FY2015 3rd Quarter data from its PERM program and the number of denials increased by over 100% when compared to 2nd Quarter. The stats revealed that denials have risen to over 11% of all applications and 22% of applications are currently under audit.

Final Version of L-1B Adjudication Policy Memorandum Released

On August 17, 2015 USCIS released the final version of its policy memo that will guide the future adjudication of the L-1B visa classification. This memo will apply to all L-1B petitions pending or filed with USCIS on or after August 31, 2015. If petitioners will have a petition pending with USCIS beyond August 31, 2015 they should be using this memo as guidance to prepare their petitions if they are already not doing so.

17 Month OPT STEM Extension Dead ?

Last week, a federal judge ruled that the 17 mo. STEM extension rule which went into effect in 2008 was issued in circumvention of federal law specifically, that it was issued without the proper notice and comment required under the Administrative Procedures Act. Many in the staffing community wonder where this judge and reasoning were when the Neufeld memo and the Simeio Solutions policies were issued also without notice and comment but, I digress. The judge ordered the OPT STEM rule to be vacated but, thankfully, the effect is not immediate. The order will not go into effect until Feb 12, 2016 leaving the DHS sufficient time to issue proposed regulations and go through the proper notice and comment period. Whether the current administration will be able to achieve this in light of the myriad of other immigration initiatives they are currently tackling remains to be seen but, at this point we remain hopeful.

Job Ads Don’t Need To Be In Largest Newspaper

The Board of Alien Labor Certification Appeals (BALCA) reversed the denial of permanent labor certification for a Director of Operations filed by Pentair Technical Products, finding that the certifying officer erred in finding the employer failed to advertise the job opportunity in the area of intended employment.

Pentair’s petition was originally denied certification on the grounds that the San Antonio Express-News, the newspaper in which it advertised for the position, is circulated in San Antonio, Texas, and not the area of intended employment, Pharr. However Pentair’s attorney argued that its selection of the paper, which circulates throughout south Texas, including Pharr, was in compliance with the regulations and that the company chose the San Antonio Express-News because it believed it would likely reach the most U.S. workers.

BALCA agreed with Pentair, noting that nothing in the regulations requires an employer to use the newspaper with the highest circulation in the area of intended employment, nor requires an employer to use a newspaper published closest to the area of intended employment. “Here, the Express-News is a newspaper of general circulation in Pharr, the area of intended employment. That this newspaper is published in San Antonio or may have fewer readers in Pharr than another paper is of no legal import. Simply put, it matters not that San Antonio, the hometown of the Express-News, is a four-hour commute from Pharr.”

September Visa Bulletin

The Department of State has released the last Visa bulletin of fiscal year 2015. Priority dates will often retrogress or even become unavailable in the September bulletin as allocations for the fiscal year are exhausted and the EB2 categories for both India and China saw retrogression of some significance. It is noteworthy that dates continued to stay almost “current” for EB3 all other countries (ROW) and that dates actually moved forward for Philippines EB3 and India EB3. The October visa bulletin will be anxiously awaited. Legislation remains sorely needed to address retrogression and the long visa waits.

BALCA Determines that Handwritten Date is Permissible in Website Postings

The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether handwritten dates on website postings that are completed as part of the recruitment for a labor certification case are permissible. In Matter of DGN Technologies Inc., the employer’s labor certification case was selected for audit and the employer provided evidence that it had posted the position on its website as one of the additional recruitment steps. The website postings contained a handwritten note stating that “continuous posting [had occurred] since June 1, 2008.” The Certifying Officer denied the case on the basis that the employer had failed to offer dated copies of its website advertisement. The federal regulations provide that an employer can demonstrate that it conducted recruitment on its website through dated copies of pages from that site. This evidence will constitute “primary evidence.” However, the Department of Labor’s Employment and Training Administration provides in its FAQ’s that an “affidavit from the official with the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job” is also permissible.” In reviewing this information, BALCA determined that the regulations only state that dated copies must be provided. They do not “specify that the date be generated electronically, nor does it require that the date be accompanied by a signature or attestation of the authorized person responsible for the posting.” Consequently, BALCA reversed the denial of the labor certification. This case provides critical information that discusses what types of evidence are permissible to document that an employer posted a position being sponsored through labor certification on its website.