Following the election, after the Republicans took a nice beat down, in part for their restrictionist views on immigration, many key Republicans have been touting a willingness to work together on CIR. See reports from the LA Times and the Huffington Post among many. But, is this good news for business immigration where the real needs are a solution to retrogression, more H-1bs, more options for entrepreneurs and most importantly, an administration that will force the Service Centers and U.S. Consulates to follow well-established legal precedent when adjudicating H-1b and L-1b petitions ? Unfortunately, these topics are not even making the discussion table. The proposal being passed around by Senators Schumer and Graham creates a path to citizenship for those persons that are currently here in an undocumented status (illegally) after ten years but, does nothing for the Indian engineer who is here legally but, is in a line that will take him thirty years to simply achieve residency. Further, their proposal makes it easier for low skilled labor to enter and work in the U.S. but, does not address the major problems that IT, engineering, and healthcare employers are facing in getting their highly skilled workers approved by the USCIS and then visas issued by the U.S. Consulates. Obviously, there is time for employers and pro-business immigration advocates to get behind measures that would address these and other key pro-business topics but, the time is now.
The DOS showed scrooge-like holiday spirit in its December Visa Bulletin released last week. In addition to the lack of movement for most categories, the DOS confirmed that they do not expect the India EB2 category to move at all and they indicated that they expect the Philippines EB3 category to creep along at a pace of only 1-3 weeks per month. The world-wide category is not much better, projected to move along at a pace of only 3-5 weeks per month. With the election behind us, we once again put our hope in Congress taking action on retrogression. Since all politicians keep all of their campaign promises, I firmly believe that CIR will happen and 2013 will see an end to long visa lines. Hey, it could happen !
TechServe Alliance is celebrating its 25th anniversary and holding its annual conference in Miami this week. Mike Hammond will be one of the speakers. He will be speaking on 2 panels “Key Trends in Accessing Talent Globally: Here, There, Everywhere” and “Key Legal, Legislative and Regulatory Issues Confronting IT & Engineering Staffing and Solution Firms” If you are attending the conference, please check out his sessions.
The Views on Business Immigration recently discussed a case from the Board of Alien Labor Certification Appeals (“BALCA”) that considered employee referral programs in labor certification cases. In Matter of Bottomline Technologies, BALCA found that an employee referral program was valid where the following documentation was submitted in a response to an audit: (1) the employer’s signed attestation regarding the dates of the employee referral program on the ETA 9089, (2) the employer’s signed recruitment report listing the relevant dates of the program, and (3) the alien’s signed acknowledgement that it had received the company handbook, including information on the referral program. At the Hammond Law Group, we were thrilled that BALCA had issued a decision supporting employee referral programs and hoped that this case would lead to greater acceptance of these programs by the Department of Labor (“DOL”). Unfortunately, we recently learned that the DOL denied a case based upon the employee referral program. In this unpublished decision, the Certifying Officer did not find any problems with the content of the employee referral program. Rather, it noted that the company only employed 16 people and stated that it “expects the employer to choose recruitment methods that offer a greater possibility of reaching an individual seeking a job opportunity.” While we believe that this decision is not supported by the language in the applicable regulations, it demonstrates that employee referral programs are viewed with skepticism by theDOL. While BALCA has provided welcome guidance on this issue, employers using these types of programs may want to implement a fourth additional recruitment step to minimize the risk that the DOL could find these programs to be invalid.
On October 18, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision in Matter of Bottomline Technologies. This case discusses the information that must be documented if an employer uses an employee referral program as part of its additional recruitment steps in labor certification. In this case, the employer submitted a labor certification application. An audit was issued by the Department of Labor. In responding, the employer noted that an employee referral program had been used as a recruitment step and submitted a one page document that discussed an incentive program for employees that referred candidates who were later hired. The Certifying Officer (“CO”) denied the application because it determined that the employer failed to provide dated copies of notices advertising the program and the documentation did not identify the employer and job location. The employer submitted a substantial amount of supporting documentation as part of its motion for reconsideration. BALCA found that this additional information could be considered because the CO had examined it when reviewing the motion for reconsideration. BALCA analyzed Matter of Sanmina-Sci Corp which set out a three part test to determine if an employee referral program was documented appropriately. The employer must prove that “(1) its employee referral program offers incentives to employees for referral of candidates, (2) . . . the program was in effect during the recruitment effort . . ., and (3) the employer’s employees were on notice of the job opening.” BALCA found that the employer’s signed attestation as to the dates of the program in the ETA 9089, the signed recruitment report which listed the dates of the program, and the alien’s signed acknowledgement that it had received the company handbook, including information on the referral program was sufficient to meet the first prong. BALCA also stated that the employer’s name and the job location were listed in the job advertisement posted on the company website. It noted that if “the CO was looking for this information to be on the employee handbook description of the employee referral program . . . this is not a reasonable or realistic expectation.” Consequently, BALCA reversed the decision of the CO. This decision provides welcome guidance on the type of information that must be documented to effectively use an employee referral program.
What to do when you need an H-1b employee in the U.S. to handle a portion of an IT services project but, you didn’t file for them under the H-1b cap while the cap was open this past spring ? Try for a B-1 in lieu of an H-1b. Although the criteria are stringent, many factual situations fit the standards. Earlier this month the Department of State issued a new cable reminding Consulates of the standards for this type of visa issuance. As you are considering this approach, keep in mind; what is the worse thing that happens ? The Consulate rejects the visa application. You are out a little time and a little money but, no worse off. You still have a U.S. based project that is missing a key player and you may have to move more of the project overseas but, until U.S. immigration policies catch up to the realities of a global marketplace, you have to try the options available.
On May 30, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed the requirements involved in posting a notice of filing. The employer submitted a Permanent Employment Certification for the position of Traditional Heating & AC Systems Installer. The Department of Labor issued an audit. When the audit was responded to, the employer failed to state where the notice of filing was posted. Under the requirements of 20 C.F.R. § 656.10(d)(ii), the notice “must be posted in conspicuous places where the employer’s U.S. workers can readily read the posted notice on their way to or from their place of employment. Appropriate locations . . . include . . . the immediate vicinity of the wage and hour notices . . . or occupational safety and health notices.” BALCA upheld the denial because it found that the employer failed to include any information about where the notice of filing was posted. However, it also stated that there may be “other ways to satisfy the [notice of filing] requirements besides stating where [it] was posted.” Consequently, the Board did leave employers some room to argue that the notice of filing requirements are met even when there is no direct statement about the location of the posting. While this decision will provide some welcome guidance for cases with problematic notice of filings, the safest route is to include language stating where the posting was placed.
If you are concerned about the brain drain occuring in the U.S. as a result of our immigration policy (or lack thereof), the Council on Foreign Relations ran an interesting blog piece earlier this month. Check it out and then take some action to communicate to Washington DC regarding your concerns. The American Immigration Lawyers Association (AILA) has a great resource for communicating to Congress.
At the Presidential debate last night, both President Obama and Governor Romney demonstrated a complete lack of any understanding of the issues relevant to business immigration. Let’s start with President Obama. I almost fell out of my chair and dropped my bowl of ice cream when I heard him recite the accomplishments and improvements that had occured during his current term. He stated, “The first thing we did was to streamline the legal immigration system, to reduce the backlog, make it easier, simpler and cheaper for people who are waiting in line, obeying the law to make sure that they can come here and contribute to our country and that’s good for our economic growth.” Did I miss a memo ? For the IT professionals who are Indian born in the EB2 and EB3 category waiting for between 5 and 25+ years for a green card, are you feeling like the backlog has been reduced ? For the professional nurse waiting abroad in the Philippines for 5-7 years for your visa to come to the U.S. or the Canadian RN working at the US hospital who is waiting 5 years for her spouse to be able to work, do you feel the process has been streamlined ? For staffing cos. who now have to produce additional documentation and file multiple extensions for H-1b workers and argue that software engineers are professionals and need a college degree, do you feel that the process is simpler and cheaper ? And as for promoting economic growth, the only growth that has been promoted is in outsourcing contracts as the practical elimination of the L-1b visa has directly resulted in the transfer of U.S. based jobs overseas. Bangalore thanks you, Mr. President but, Silicon Valley does not. Now for Mr. Romney, how naive can he be ? Does he really want to turn over the screening and admission of immigrants to U.S. schools as he posited ? Has he never heard of Tr-Valley or University of Northern Virginia, or more recently Herguan University, all accused of visa fraud and running visa mills. In addition to these high profile cases, if he did a little exploring, he would come to know that many U.S. universities are handing out CPT like candy on Halloween and admitting foreign students into grad programs based upon dubious educational records. Why ? The almighty dollar runs U.S. universities and international tuition is a great source of revenue. If a green card could be obtained by simply completing a U.S. degree, does Mr. Romney not think that the fraud would be rampant ? Was he kidding, “get a green card stapled to their diploma, come to the U.S. of A. ” We need serious solutions to the broken state of our business immigration laws and unfortunately, last night, neither candidate seemed to have a clue.