E-Verify Employer Found Liable for 129 Form I-9 Violations

Golf International DBA Desert Canyon Golf, an E-Verify employer, was found liable for 129 Form I-9 violations by the Office of the Chief Administrative Hearing Office (OCAHO).  This included 125 violations consisting of failure to ensure that employees properly completed Section 1 of Form I-9 and/or failure to properly completing Section of Form I-9 and four violations consisting of failure to prepare and/or present Forms I-9.  The total fine was $136,697.00.  In its decision, OCAHO made it clear that the good faith defense is only available for technical and procedural Form I-9 violations and that participation in E-Verify DOES NOT exempt an employer from properly completing, retaining and producing for inspection Forms I-9 that relate to its employees.  This is a good reminder that all employers should audit their Forms I-9 and review any internal procedures regarding the proper completion and retention of their Forms I-9 on a regular basis.  Remember – An employer’s first and most important responsibility is to properly complete a Form I-9 for each new employee regardless of whether or not they use E-Verify.

More on the H-1b cap

In the days since the USCIS announced the large number of H-1b cap petitions filed this year, numerous articles have been written on the topic discussing the need for immigration reform and an increase in the number of H-1b’s available each year. Here are a few to read:  BloombergBusinessWeek ; Computerworld; and our friend and fellow immigration attorney Cyrus Mehta published an insightful blog post on the subject.

172,500 H-1b cap cases filed

Today, the USCIS announced that they received approximately 172,500 H-1b cap petitions. The lottery was completed today and 85,000 lucky petitions were selected for further processing. The remaining 87,500 rejected petitions will be returned. We expect to start receiving receipts and rejections in the next week. Premium processing of cases is expected to start no later than April 28th.  Earlier this week, President Obama made a speech declaring how important it is for U.S. economic growth to keep the best and the brightest in the U.S. and to encourage entrepreneurship. With today’s announcement that over 50% of the best and brightest, as selected by U.S. employers, are being rejected for jobs in the U.S., it may provide the impetus for House Speaker Boehner and the Republicans in the House to stop holding CIR hostage and give appropriate consideration to the Senate bill which was passed in the summer of 2013 with wide bi-partisan support but, has not even been considered in the House.

May Visa Bulletin Released

The DOS has released the May Visa Bulletin. The only category seeing a significant jump was the EB3 Philippines category. A few categories saw slight movement while others, including the “all others” EB3 category failed to advance. Congressional action to solve the retrogression issue is long past due.

Cargill to Outsource IT Jobs to India

The StarTribue recently reported that Cargill, a giant in the agribusiness world, has announced that it will outsource a portion of its information technology services to India. This will affect 900 jobs worldwide, including 300 in the Twin Cities. These jobs will be outsourced to Tata Consultancy Services, a large IT outsourcing firm in Mumbai, India.  Some of the affected employees may be offered new positions at Cargill, others may be offered positions at Tata, and the remainder will be laid-off. With three percent unemployment in the information technology industry, we don’t blame Cargill for outsourcing these jobs to India when our outdated immigration laws prevent companies from employing specialized workers here in the U.S., especially when the H-1b cap is reached in just five days. We encourage our readers to contact their Congressional representatives to urge that new immigration laws are passed.

H-1b cap reached

The USCIS has officially announced that the H-1b cap for FY 2015 has been reached and that they received a significant number of petitions for both the US masters quota and the regular quota.  They did not announce when the lottery would be held or when receipts and returns should be expected but, if past history is any indication, the process of receipts and returns will take several weeks.

H-1b lottery, CIR, and Silicon Valley

The H-1b cap filing season officially opens today and the USCIS once again expects a lottery with the end result being that literally tens of 1000′s of professionals, some of them holding US graduate degrees will be rejected and told to go home ! As this unfolds, tech leaders from the Silicon Valley have made a push in Washington to pass immigration reform emphasing the job creation that is a direct result of H-1b workers.

BALCA Upholds Denial Where the Employer Made a Clerical Error in the ETA Form 9089

The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision discussing errors made in labor certifications. In Matter of APT –Advanced Polymer Technology, the employer sponsored the position of R&D Manager/ Chemist for labor certification and stated that it conducted recruitment through an employee referral program, a job search website, and the employer’s website. The case was selected for audit and the employer submitted proof that it had conducted recruitment through a job search website, its website, and on-campus recruitment. The audit response did not address the discrepancy between the evidence of on-campus recruitment provided in the audit response and the employee referral program that was listed in the ETA 9089. The case was denied by the Certifying Officer (“CO”) on the basis that no evidence of an employee referral program was included in the audit response. The employer requested that the case be reconsidered on the basis that its statement that recruitment was conducted through an employee referral program was a clerical error. BALCA reviewed the federal regulations and found that the PERM process does not “permit[] employer’s to make changes to applications after filing. The … program is designed to streamline the process and an open amendment process that freely allows changes to applications … is inconsistent with the goal.” However, BALCA went on to state that the regulations do “recognize the appropriateness of an opportunity to present … evidence that was generated to comply with the record retention requirements.” Unfortunately, BALCA determined that the appropriate time to provide this additional evidence is in the audit response. Since the employer failed to do so, BALCA reaffirmed the denial. It is critical that labor certifications are filed with accurate information. However, this case does give some support for the idea that explanations or clarifying information can be presented in an audit response.

H-1b cap filing deadline upon us !

The H-1b cap season is in full swing with filings accepted starting Tues. April 1st. The USCIS has set up the link to it’s H-1b FY2015 page which will provide updates periodically.  The USCIS has also issued a press release reminding people that cases received during the first 5 business days will be considered as part of the lottery. Given that the DOL is taking seven days to issue a certified Labor Condition Application (LCA) and that a certified LCA is a pre-condition to filing an H-1b case, tomorrow will be the absolute last day in which an H-1b cap case can be started and be given any hope of being considered in the lottery. Some people are predicting as many as 175,000 cases may be received in the 1st 5 days this year. The USCIS also advised that the clock on premium processing cases will begin no later than April 28, 2014.  Good luck in the lottery and may the odds be ever in your favor !

BALCA Issues a Decision Discussing Laid-Off U.S. Workers

The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision that discussed whether a laid-off U.S. worker was qualified for a position sponsored through an Application for Permanent Employment Certification. In Matter of Federal Home Loan Mortgage Corporation, the employer submitted a labor certification case for the position of “Financial Analyst – Senior.” The case was selected for audit, and the employer provided documentation showing why an employee who had been laid off by the employer was not qualified for the role. The description of the position provided in the ETA 9089 stated that it would involve the use of SAS programming and relational databases such as Structured Query Language. The Certifying Officer denied the case on the basis that the laid-off employee had the necessary years of experience in business applications and would “be able to acquire any additional job-specific knowledge during a reasonable period of on-the-job training.” In reviewing the case, BALCA referenced the regulations at 20 C.F.R. § 656.17(k)(1), which provide that an employer that is sponsoring a position for labor certification and has had a lay-off six months prior to the date that the case was filed must “notify and consider all potentially qualified laid off U.S. workers.” BALCA considered the resume of the laid-off U.S. worker and found that he had no experience with many of the programming and software tools that are used in the sponsored position. It also stated that the CO was incorrect in assuming that the laid-off U.S. worker’s experience with the employer would have necessarily included the use of these tools when there was no evidence in the worker’s resume to support this contention. Consequently, BALCA reversed the CO’s decision. The rules regarding the steps that must be taken to be eligible to file a labor certification when a lay-off has occurred are complex. Consequently, we advise employers to contact us if a lay-off occurs so that we can discuss how it will impact the immigration needs of employees.