The Board of Alien Labor Certification Appeals (“BALCA”) recently considered when the validity period of an ongoing employee referral program begins. In Matter of Mphasis Corporation (successor in interest to AIG Systems Solutions Private Limited), BALCA reviewed a case that was denied on the basis that the recruitment conducted by the employer for the position of “Senior Programmer Analyst” did not occur within the validity period of the prevailing wage determination. Specifically, the employer stated on the Form ETA 9089 that it conducted an employee referral program starting on July 1, 2007. However, the prevailing wage determination validity period was from July 9, 2007 until October 10, 2007. The case was not filed until October 19, 2007. In response to the denial, the employer provided evidence that its employee referral program is ongoing and had been in existence since 2003. Consequently, BALCA determined that the “precise question for determining when the recruitment on the [employee referral program] commenced is when the company employees know a vacancy exists for which they can make a referral.” In reviewing the evidence, BALCA found that the employees were not alerted to this position until it was promoted internally on September 20, 2007. As a result, BALCA determined that the employee referral program did occur within the prevailing wage determination validity period and the denial was overturned. This case provides critical information about when an ongoing employee referral program is considered to have begun.
Herguan University’s former CEO, Jerry Wang, was sentenced to one year in prison and order to forfeit $700,000 for his part in a student visa scheme.
Mr. Wang admitted to submitting false document to the Department of Homeland Security’s (DHS) Student and Exchange Visitor Program (SEVIS) program. He also admitted to participating in a schedule to commit visa fraud involving 100s of Forms I-20, Certificate of Eligibility for Non-Immigrant Students, as well as allowing unauthorized access to the DHS computer database.
The fraud was uncovered by the Document and Benefit Fraud Task Force — an agency created by DHS, and the U.S. Departments of Justice, Labor and State to combat document and immigration benefits fraud — in an investigation spearheaded by ICE, the agency said.
With this case, ICE reaffirmed its intent to “aggressively target those who commit student visa fraud out of greed and self-interest. Their actions undermine the integrity of this country’s immigration laws and it will not be tolerated.”
The main reason Senator Grassley was troubled was because he believed that the new memo could result in hundreds of thousands of temporary foreign workers being admitted into the U.S. … wouldn’t that be terrible! Senator Grassley also believed that “A more liberal definition of ‘specialized knowledge’ that causes hundreds of thousands of additional L-1B workers to be admitted to the country will also accelerate the offshoring of jobs from the United States.” I am not sure which memo Senator Grassley read but the new L-1B has not “opened the flood gates” in the L-1B category. The memo still provides too much subjective review by Officers. The memo also does not provide bright line definitions of specialized knowledge as was originally hoped. However, if read carefully the memo provides guidance to petitioners as to what evidence best demonstrates specialized knowledge in USCIS’ eyes. Please see my article in ILW.com for a detailed review of the L-1B memo and a breakdown of the factors that tend to demonstrate specialized knowledge.
The Department of State released the October Visa bulletin today and it contained great news for individuals affected by retrogression. The new bulletin contains a 2nd chart identified as ” Dates for filing of employment based applications.” This second chart allows for the filing of an I-485 prior to one’s priority date becoming current. This will allow a person to obtain an EAD and AP sooner than expected. For example, if you are from India in EB3 and you have a priority date prior to July 1st 2005, you can file your 485 in Oct. If you are from the Philippines and you have a priority date prior to Jan 1, 2015, you can also file. Contact your attorney at HLG if you think you may qualify under this new bulletin.
The USCIS issued a press release providing more information about this change.
Unfortunately, the priority dates did not progress as rapidly as expected as the Philippines EB3 only moved to Jan 2007 and India EB2 actually retrogressed to May 2005. The all other countries category (ROW) remained virtually current.
Louisiana Crane & Construction LLC, which provides oilfield services, has agreed to pay $165,000 in civil penalties and create a $50,000 fund to pay workers who lost wages because of the company’s policy requiring workers who were not U.S. citizens to provide additional documents during the Form I-9 employment verification process. The company will also be required to conduct anti-discrimination training and be subject to monitoring for two year.
The Immigration and Nationality Act’s (INA) anti-discrimination provision prohibits employers from requiring additional documents from workers during the employment eligibility verification process based on their citizenship status
This case is serves as evidence that the Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is continuing to ramp up its activities thanks in part to a 2010 agreement requiring the U.S. Citizenship and Immigration Services (USCIS) to refer discrimination matters to the OSC, along with any relevant information from the E-Verify system. As such, employers should be very careful to properly follow the employment verification regulations regarding proper completion of a Form I-9 and use of the E-Verify system.
The case is U.S. v. Louisiana Crane Co. LLC, case number 14B00102, before the U.S. Department of Justice’s Executive Office for Immigration Review, Office of the Chief Administrative Hearing Officer.
USCIS has altered the process for paying the USCIS Immigrant Fee through its electronic immigration system (ELIS). The revised process reduces the amount of information that an immigrant must provide. Furthermore, it allows anyone, including an employer, attorney, or accredited representative, to pay the fee.
Recently, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether the National Prevailing Wage Center (“NPWC”) Director has the discretion to reject an employer-provided wage survey that does not include an arithmetic mean wage. The employer submitted a prevailing wage determination for the position of “speech language pathologist” and requested that the NPWC consider a wage survey from Compdata Survey. This survey provided a median wage, but did not include an arithmetic mean wage “because doing so would have violated guidance issued by the Department of Justice for ‘Statements of Antitrust Enforcement Policy in Health Care.’” The NPWC rejected the use of the survey because it failed to include an arithmetic mean wage. This decision was appealed on the question of whether the NPWC Director has the discretion to refuse to consider an employer-provided wage survey that did not contain an arithmetic mean wage. BALCA noted that “neither the applicable regulations nor the guidance document require an employer-provided survey to offer the arithmetic mean wage whenever the data to do so may be available. There is also no regulation or guidance that requires an employer provided survey to take extra measures to ensure that the arithmetic mean wage is offered.” Rather, the regulations provide that if a “survey provides a median and does not provide an arithmetic mean, then the prevailing wage applicable to the employer’s job opportunity ‘shall be the median of the wages of workers similarly employed in the area of intended employment.’” Consequently, the decision of the NPWC Director was determined to be an abuse of discretion and was remanded. This case provides critical information to employers who may employ greencard candidates in locations or sectors that cannot provide an arithmetic mean wage.
There has been reported delays in the production of I-765 and I-485 cards. This is due to the USCIS card production facility in Corbin, KY undergoing maintenance. All card production has been switch to another facility and of course that facility is now backlogged. If you are expecting an I-765 or I-485 card from a recently approved petition expect an additional 2-3 week delay in receiving your card in the mail. USCIS expects to resolve this issue sometime in September.