In a recent case, U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014), the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) spent tens of thousands of dollars (think daily salaries of the investigators, the Judge and his/her staff) to collect $500 from an employer for two I-9 violations. Keegan Variety is a mom-and-pop convenience store in Van Buren, Maine on the Canadian border. The store employed only two people – a mother and cousin of the owners. While we understand that regulations regarding employment verification and work authorization must be followed, there is something to be said for wasting the taxpayers money to prosecute small family owned businesses. Maybe a written warming would have been appropriate in this situation. However, the moral of the story for each and every employer is that obviously the U.S. government is not above wasting the taxpayers’ money to prosecute you for violating I-9 regulations, no matter your size. For further information, please contact us for more information on how you can remain I-9 compliant. To read the case I am discussing above, please see: http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume11/1238.pdf.
The February Visa Bulletin has been released by the Department of State and EB3 worldwide and Philippines saw rapid advancement again. India EB2 also moved for the first time in several months. The bulletin contained predictions about continued forward movement in EB3 categories but, indicated that “corrective” action aka retrogression may be coming.
If your H-1B employee is not properly terminated you may be liable for the remainder of their prevailing wage. Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006), established the requirements to effect a bona fide termination of H-1B employment and end employers’ obligations to pay wages promised under LCAs: (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled, and; (3) offer to pay the reasonable cost of return transportation to his or her home country. In almost all situations these steps should be followed to protect your company from paying back wages.
However, there are situations where an employer will not be liable for wages after termination even when it fails to follow the above three steps. A recent Administrative Review Board case Kuanysh Batyrbekov v. Barclays Capital outlined one such situation, when there are multiple H-1B employers. In this case, it was found that a bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified the H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a “change of employer.”
Thus, if you have terminated an H-1B employee and they have secured another H-1B petitioner, you no longer have an obligation to pay them their prevailing wage for the remainder of their LCA.
The U.S. District Court for the District of Columbia recently determined that a union that represents technology workers has standing to sue the U.S. Department of Homeland Security on the basis that these workers were harmed by the U.S. Optional Practical Training (“OPT”) STEM extension program. In Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, the court considered whether a collective-bargaining organization that represents science, technology, engineering, and mathematics workers had standing to sue the U.S. government on the basis that the OPT program and OPT STEM extension program had injured the U.S. workers represented by this union. The plaintiff argued that these programs had increased competition for STEM jobs, which harmed its union members. Specifically, three union members were unable to obtain employment with JP Morgan Chase, Ernst &Young, IBM, and Hewlett Packard between 2010 and 2011. During this same time period, these organizations employed OPT STEM employees. The District Court stated that to establish standing, the plaintiff must show that: “(1) it has suffered an injury-in-fact, (2) the injury is fairly traceable to the defendant’s challenged conduct, and (3) the injury is likely to be redressed by a favorable decision.” Since there was no allegation in the complaint that the union’s workers applied for roles that were filled by OPT workers, the first three complaints were dismissed. In reviewing the remaining complaints, the court did find that the three workers “are specialized in computer technology, and they have sought out a wide variety of STEM positions with numerous employers, but have failed to obtain these positions following the promulgation of the OPT STEM extension in 2008.” Since the court found that these workers were “in direct and current competition with OPT students on a STEM extension,” the court found that the plaintiff had standing to sue on the remaining claims. While the STEM program is applauded for providing work authorization to individuals who have needed science, technology, engineering, and mathematics training in the U.S., this case shows that some unions believe that U.S. workers are being harmed.
AAO Determines that Beneficiary Cannot Use Experience Gained with the Petitioner to Qualify for a Sponsored Role
In an unpublished decision, the Administrative Appeals Office (“AAO”) considered whether the Beneficiary of a filed I-140 Immigrant Petition for Alien Worker could use experience gained at the sponsoring employer to demonstrate that he met the requirements of the role. In this case, the sponsoring employer filed a labor certification for the position of repairman and stated that this position required two years of experience. The employer also listed in the labor certification that the Beneficiary had over two years of experience as a repairman at a prior employer and close to six years of experience with the sponsoring employer. When the I-140 was filed, the employer only provided documentation demonstrating the experience that the Beneficiary obtained with it. The case was denied. In filing this appeal, the sponsoring employer argued that USCIS should “be focusing on whether the beneficiary was qualified for the position offered before the priority date . . . rather than whether the beneficiary was qualified before being hired by the Petitioner.” In denying the appeal, the AAO stated that the employer was attempting to qualify the Beneficiary through the experience he gained while working for it. However, since the Beneficiary’s experience with the sponsoring employer was substantially comparable to the position offered, this experience could not be used to establish that the Beneficiary had the necessary qualifications for the role. While there are provisions in the law that allow employers to use experience that a Beneficiary obtained while working for a sponsoring employer, they involve specific requirements that the employer and Beneficiary must meet in order to be successful. The Hammond Law Group is always happy to discuss these types of cases to determine whether it is feasible to use experience gained at a sponsoring employer in the greencard context.
The Staffing Industry Analysts (SIA) published an article discussing the impact of President Obama’s Executive Action on staffing companies and HLG partner, Mike Hammond is quoted.
On Thursday, November 20, 2014, President Obama announced a number of measures that will reform our immigration system. While some of these provisions do not relate to employment-based immigration cases, there are several items that will provide clarification and relief for employment-based cases. Many of the specific details about how these changes will be implemented are still being released. However, please fund a summary below.
Adjustment of Status Applications
Individuals who have an approved employment-based immigrant petition and who have been unable to file their adjustment of status due to the quota backlog will be allowed to pre-register to receive adjustment of status benefits when their I-140 is approved but no priority date is available.
Guidance will be released to clarify the meaning of “same or similar” occupation. This is expected to allow broader flexibility to change jobs after the I-485 has been filed.
Guidance is expected to be released to illuminate the meaning of “specialized knowledge.”
Regulations are expected to be released in December or January to allow work authorization to certain H-4 nonimmigrants based upon their spouse’s permanent residence application.
Optional Practical Training:
Regulations will be released to expand the length of time that a STEM graduate may work through OPT authorization. This regulation will also expand the types of degrees that will be eligible for OPT. USCIS is also being directed to implement stronger “ties to degree-granting institutions, which would better ensure that a student’s practical training furthers the student’s full course of study.”
The Department of Labor will review and revise the PERM system, including modernizing the recruitment methods.
The Hammond Law Group is thrilled that the President is taking needed action to promote reform in our immigration system.