Yesterday, the Washington Post issued a good summary on the prospects of immigration reform. Although the conventional wisdom is that the CIR plan passed by the Senate in June has no chance of becoming law (if it ever did), politics often yields some surprising compromises and immigration reform in a piece meal fashion remains possible, prior to 2014 elections.
The Department of State has released the December Visa Bulletin and EB2 India has retrogressed to 2004 while the world-wide EB3 category jumped to Oct 2011. The bulletin predicted no forward movement for India EB2 or EB3 in the coming months. These horrific wait times cry out for a legislative solution.
Infosys, an Indian software development firm, recently reached a $34 million settlement with federal prosecutors in Texas. The U.S. government accused Infosys of bringing employees to perform work in the U.S. on B-1 visas, which allows foreign nationals to enter the U.S. temporarily for business purposes. The U.S. government argued that Infosys should have submitted H-1b petitions for these foreign nationals so that they could validly perform skilled labor jobs. The settlement reached between the federal prosecutors and Infosys was the largest ever levied in an immigration case. According to the settlement, Infosys submitted letters to the U.S. consulate containing false statements regarding the nature of the B-1 visa holders’ trips to the U.S. It may be wise for companies that employ foreign workers to reexamine their immigration practices to ensure that they are in line with federal laws. This settlement also demonstrates that there is a critical need for immigration reform so that U.S. employers can access a sufficient number of visas to meet their business needs.
There have been a lot of updates over the past few weeks discussing the prospects of CIR being considered by the House prior to the end of this year however, the conventional wisdom is now unequivocally pointing to a death and burial of any chance at CIR passing in 2013. Politico ran a story yesterday quoting Republican leadership regarding the agenda to be taken up in the few days left and immigration reform was noticeably absent. Although there continues to be political posturing by individual politicians from both parties advocating for CIR this year, it does not appear possible. 2014 ? Not likely given that it is an election year and virtually no one believes CIR will be taken up as it creates potential political issues for both parties. A piecemeal approach remains theoretically in play, as it may allow both parties to claim some form of victory but, the obstacles remain significant . Obviously, a last minute miracle is always possible as politics, if nothing else, can be unpredictable but, this failure to pass CIR in 2013 likely means that a rationale immigration policy remains elusive. Here are links to two of our friends and colleagues giving their opinions on CIR’s prospects in 2013. Enjoy but, come back to our blog when you finish reading ! Greg Siskind and Chris Musillo on CIR.
And they say ignorance and poor advice doesn’t pay off ! In this case it sure did. A Federal Judge ruled in favor of an IT Staffing co. and stated that they did not willfully violate the DOL’s posting regulations when they failed to post at 3rd party sites where they placed H-1b workers because they had tried to post at those sites and personnel at the company thought that trying really hard was sufficient. The ruling does NOT stand for the proposition that postings are not required at the actual worksites as the Court acknowledged that is the law. I also think it would be a mistake to think that the ruling stands for the proposition that if you try really hard that you are compliant. Rather, I think this ruling should be viewed in the context of an over-reaching DOL trying to claim bad acts i.e. willful acts when the facts supported negligence or ignorance. As any prosecutor will tell you, don’t over charge or you risk ending up with a not guilty verdict. Did the company clearly violate the DOL regulations by not posting at 3rd party worksites where their H-1b workers were placed ? yes. But, did they deserve a fine of almost $200,000 ? The Court obviously thought no and found a way to serve justice. I also think the facts in this case cry out for a legislative fix. What is the proper course of action when a customer says that, “you can’t place that notice on our premises “? In this case, the company had documented emails and letters to their customers requesting them to post the required notices and yet they were met with refusal after refusal. Many of their customers added to their level of ignorance by telling them that they did not have to post at the work-site location. Surely, the brilliant legislators in Washington can come up with a solution to this problem. Anyone say national registry of postings ?
On September 26, 2013, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that discussed the effort that U.S. employers must make in recruiting U.S. workers in the labor certification process. The employer sponsored the position of “Accountant, Level I” and received notification from the Certifying Officer (“CO”) that the case had been selected for supervised recruitment. After completing the necessary recruitment steps, the employer submitted its recruitment report, which stated that all U.S. applicants did not meet the minimum qualifications or did not respond to interview invitations. The CO denied the labor certification because it found that the employer had “failed to use good-faith efforts to reach [U.S.] applicants.” Specifically, the employer rejected candidates whose certified mail interview invitations “were returned as undeliverable, despite the fact that the employer had an alternate means of contacting these . . . U.S. workers.” BALCA reviewed the Immigration and Nationality Act and reiterated that one of its goals is to “prevent foreign workers from obtaining permanent employment in the United States unless there are not sufficient U.S. workers who are able, willing, qualified, and available to perform the work.” It found that the employer never made any effort to contact the U.S. applicants who failed to respond through an alternative method. In addition, it neglected to track the interview invitations through certified mail. If it had, it would have found that these applicants did not receive the invitation until four to seven weeks after the interview was scheduled to have occurred. Thus, BALCA determined that the employer failed to make a good faith effort to recruit these U.S. workers and denied this case. When an employer is reviewing U.S. applicants for a position that is being sponsored through labor certification, it should be careful to try to contact these individuals through all available contact methods and document the efforts made to reach these candidates.
The Department of State has released the November Visa Bulletin and the results are disappointing. India EB2 and EB3 and Philippines EB3 showed no movement. Worldwide EB3 which had moved rapidly over the summer slowed to a mere 3 months forward movement. The need for retrogression relief remains critical.
When a Department of State Consular office sends an H-1b case back to the USCIS recommending revocation, the USCIS re-affirms their prior decision in approximately 30% of cases. For many other employment based visa cases, the percentage of re-affirmations is significantly lower i.e. L-1A: 18.02%; L-1B: 13.04%; O-1: 19.23%; and, P’s: 25.93%. In our experience, an even higher percentage of cases would be re-affirmed if employers chose to respond to the Notice of Intent Revoke (NOIR) but, often it will be 6 months to a year before the NOIR is even issued and by that time, the need for the employee or the specifics of the project have changed making the case moot. For employment visa cases to be decided on the merits, the DOS and the USCIS need a speedier process.