H1-B and L-1 Reform Bill Introduced

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.

Changes Coming to Freedom of Information Improvement Act (FOIA)

On June 30, 2016, President Barack Obama signed the bipartisan Freedom of Information Improvement Act of 2016 (S. 337). The main goal of the legislation is to make it more difficult for agency officials to withhold government records sought under the Freedom of Information Act. However, none of the exemptions to the FOIA will change. The biggest change will be the creation of a uniform online portal for the submission of FOIA requests. So while there will not be significant changes to the types of information that can be requested, the hope is that the online portal will be a major boost to the efficiency in which FOIA requests are responded to.

August Visa Bulletin

The Department of State recently released the August Visa Bulletin and as promised, several dates and categories retrogressed significantly. Of note, is the India EB1 category which retrogressed to Jan 1, 2010 and the All Other EB2 category which retrogressed to Feb 1, 2014. It is also interesting to note that the EB3 Philippine dates jumped forward three years to Jan 2013 in the Dates for Filing chart. Although, it is expected that the USCIS will not accept filings based upon the dates of filing chart but, instead, use the final action date chart, it is nonetheless a confirmation of the bubble that most felt existed in EB3 filings, heavily dominated by RN petitions. The September bulletin is likely to see even more retrogression or a complete unavailability in some categories as the fiscal year winds down with a fresh start coming Oct 1.

BALCA Affirms that 20 C.F.R. § 656.17(f)(6) Does Not Apply to Job Orders

BALCA recently upheld its previous decisions that found that 20 C.F.R. § 656.17(f)(6) does not apply to state workforce agency job orders. In Matter of Pinnacle Technical Resources, Inc., the employer submitted a labor certification for a “Technical Recruiter.” The labor certification specified that the position was responsible for a number of recruitment related activities, including screening, interviewing, and conducting training of new employees. The case was audited and the employer submitted a job order in its audit response that stated that the position was responsible for activities that included analyzing payroll and benefits, employment verification, unemployment claims, and time sheet management. The Certifying Officer (“CO”) denied the case on the basis that the job order contained duties that “exceeded the job duties listed on the ETA Form 9089,” which was in violation of 20 C.F.R. § 656.17(f)(6). The employer appealed the case. BALCA reviewed its prior case law and determined that “the denial cannot be sustained because § 656.17(f)(6) only applies to advertisements placed in newspapers of general circulation or in professional journals. It does not regulate the content of SWA job orders.” While it is critical that recruitment match the job duties and requirements specified in a labor certification, the Hammond Law Group applauds BALCA for reminding the Department of Labor that job orders do not have the same content requirements as are demanded of newspaper advertisements and professional journals.

INCREASES TO I-9 VIOLATIONS AND OTHER IMMIGRATION RELATED EMPLOYMENT VIOLATIONS

Today, the U.S. Department of Justice (DOJ) increased the possible fines and penalties for employers with I-9 employment eligibility violations including the employment of unauthorized workers and/or employers who have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). These increases are due to the Bipartisan Budget Act of 2015 which was enacted in late November 2015 and will take effect on August 1st for violations that took place after November 2, 2015.

Under the interim final rule, the minimum penalty for employment of an unauthorized worker will jump from $375 to $539 and the maximum penalty will jump from $3,200 to $4,313. Those with multiple violations may face a penalty of $21,563. I-9 paperwork violations will increase from a maximum of $1,100 to $2,156 while the new top penalty for unfair immigration-related employment practices violations will increase to $3,563.

I-9 and employment Immigration related violations are enforced by the DOJ through the Office of Special Counsel for Immigration-Related Unfair Employment Practices and the Office of the Chief Administrative Hearing Officer.

Impact of Supreme Court DAPA decision ?

Many people read the headlines last week and saw that the Supreme Court had ruled that President Obama had exceeded his Executive Action authority on immigration and wondered if it impacted any of the employment related executive actions such as H-4 EADs or OPT STEM, etc and the answer is not at all. The Supreme Court SCOTUS DAPA decision impacted only one aspect of President Obama’s executive actions, namely, the DAPA program. All other programs were left intact.

July Visa Bulletin

The Department of State (DOS) has released the July Visa Bulletin. It contains no surprises as the dates during the summer generally move at a snails pace. The bulletin does have some projections for the next two months.

H-1b Lottery Prompts Lawsuits

In the last several weeks, at least two lawsuits have been filed relating to the H-1b lottery. The first filed by AIC and AILA allege that the USCIS improperly counts the petitions filed. The complaint arises out of a FOIA request in which the USCIS failed to provide full documentation regarding the lottery system and the allocation of visas. Many attorneys have long believed that the lottery system is replete with inaccuracies. The second brought by two companies that did not have filings chosen in the lottery, alleges that the random lottery itself is a violation of the statute. We will keep readers updated on these two Federal Court actions.

BALCA Overturns Denial Resulting from Inconsistencies in 9089 Instructions and Form

The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that a typographical error resulting from inconsistencies between the labor certification form and its instructions could not serve as a basis for a denial. In Matter of UBS Securities LLC, the employer submitted a labor certification for a Director, Derivative Business Control Group. In the Form 9089, the employer listed that the position’s primary requirements were a Bachelor’s degree and 60 months of experience. The employer also stated that it would accept an alternative requirement of a Master’s degree and 36 years of experience. Per the federal regulations, primary and alternative requirements must be equivalent. The Department of Labor has historically found that a Bachelor’s degree and five years of overall progressive experience and a Master’s degree and three years of experience are equivalent. The Certifying Officer denied the case because it found that a Master’s degree and 36 years of experience is not equivalent to a Bachelor’s degree and 60 months of experience. In response, the employer argued that the Form 9089 “asks for primary experience requirement in terms of months, while the alternate experience requirement must be entered in terms of years.” Thus, the employer listed a requirement of 36 years in the alternate requirement section when it only required 36 months of experience. In reviewing the case, BALCA determined that the Form 9089 instructs applicants to state the number of years of experience. In contrast, the instructions to the Form 9089 directs employers to enter the number of months of experience. Since there was a discrepancy between the form and the instructions, BALCA found that “such inconsistencies ‘must be construed against the promulgator of the form and / or instructions, not the applicant.’” Consequently, the denial was overturned. It is critical that employers carefully read the requirements of every form submitted to the U.S. government. However, this case does assist employers who are faced with inconsistent requests in a form and its instructions.

Staffing companies and the new OPT STEM rules

Recently, several web-sites have provided opinions that staffing companies can not comply with the new STEM OPT rules. We disagree. One of our attorneys, Matt Minor recently had an article published in ILW.com providing our counter opinion. We are happy to provide guidance to staffing companies for how to comply with this new set of rules.