Department of State Provides Update in Regards to the Technical Problems with the Consular Consolidated Database

The Department of State (“DOS”) provided an update in regards to the technological issues it is experiencing with its Consular Consolidated Database. The Bureau of Consular Affairs is continuing to work to remedy this issue. As of June 22nd, 22 consulates have been reconnected. This represents about half of the non-immigrant visa volume. The DOS will continue to reconnect Consulates as this technical problem is resolved. However, biometric data is still not available. The DOS is issuing visas for urgent and humanitarian travel. The DOS has not provided any further update in regards to when it expects the database to be fully operational again. At this time, we are suggesting that individuals delay making travel plans until these technical issues are solved.

Update on Save Jobs USA v. Department of Homeland Security

A few weeks ago the United States District Court denied Save Jobs USA’s motion for a temporary injunction of the H4 EAD program. Save Jobs USA has now moved for judgment on all counts in its complaint. Save Jobs USA continues to argue that the new rule creates more competition for U.S. employees from H-1B workers and potential competition from H-4 visa holders with the new EAD. Save Jobs USA also alleges that the rule goes beyond DHS’s authority because the regulatory definition of the H-4 status doesn’t provide any permission to work. We will provide more updates as they become available.

Department of State Announces Technical Issues with Overseas Passport and Visa Systems

On June 12, 2015, the Department of State announced that it is experiencing technical problems with its Consular Consolidated Database (“CCD”). These difficulties are not related to the issues that were experienced last year with the CCD. The technical glitch is not specific to any country, visa category or citizenship document. The Department of State has reported that a hardware failure occurred on June 9th that stopped biometric clearance requests from moving from the Consulates to the CCD. In addition, the system that is used to perform national security checks is experiencing technical difficulties. Consequently, the Department of State is not able to print visas and other travel documents. Due to these delays, a backlog in visas has developed, which will cause further delays even once this system is fully operating again. The Department of State has not provided information about when these technical issues will be resolved. It has stated that it will attempt to assist non-immigrant visa applicants who have urgent humanitarian travel needs to obtain a visa. However, the Hammond Law Group suggests that individuals delay making travel plans until these technical issues are resolved.

July Visa Bulletin Released

The Department of State has released the July Visa bulletin and there were no surprises. As expected the EB3 Philippines became unavailable and will likely remain that way until October. India EB2 did not progress and has likely seen its last forward movement until October. EB3 for all other countries saw another 6 week advance and is moving ever closer to current.

ICE FINES WASHINGTON APPLE ORCHARD MILLIONS FOR i-9 VIOLATIONS

A $2.5 million dollar settlement was reached between the U.S. Immigration and Customs Enforcement (ICE) and Broetje Orchards, LLC for violations of the Immigration Reform and Control Act of 1996 (IRCA). The multimillion dollar settlement was a result of ICE’s findings during an I-9 audit performed by ICE”s Homeland Security Investigations (HIS) last summer. Specifically, HSI found that almost 950 of the company’s employees may not have been authorized to work in the United States. In the settlement, although Broetje Orchards did not admit any criminal wrongdoing, they did acknowledge that it continued to employ unauthorized workers after being notified by ICE that those employee did not have permission to work in the U.S.

Pursuant to IRCA, employers are required to properly complete and maintain for inspections original Form I-9s for all current employees (with limited exceptions) and for some terminated employee. An employer must retain the completed Form i-9s for terminated employees for a period of at least three years from the date of hire or for one-year after termination, whoever is longer. Audits of this kind have been increasing in number and fine amount in the past few years.

BALCA Upholds Denial of Labor Certifications Where Employer Failed to Provide a Signed Recruitment Report

In Matter of New York City Department of Education, the Board of Alien Labor Certification Appeals (“BALCA”) considered whether a typewritten name could represent an electronic signature. The employer submitted labor certifications for the positions of “Students with Disabilities (Special Education) Teacher.” The cases were audited and the employer provided a recruitment report with the typed name of the employer’s signatory. The cases were denied on the basis that the employer failed to provide a signed recruitment report. The employer argued that the omission was not material and that the regulations do not require a handwritten signature on a recruitment report. In reviewing the requirements under 20 C.F.R. § 656.17(g)(1), BALCA noted that there is no distinction between handwritten and electronic signatures. However, BALCA also stated that there was no evidence that the employer intended the typewritten name to constitute a signature because the employer admitted that there was a “physically-signed copy of the report which was inadvertently omitted from the audit response.” Furthermore, BALCA noted that the typewritten name was not “preceded by the customary ‘/s/’ for electronic signatures, [which] suggests that the [signatory] did not execute or adopt the typed word with the intent to authenticate the document.” Consequently, BALCA upheld the denial of these cases. However, it did state that “there is indeed no indication [in the federal regulations] that recruitment reports, even those delivered by mail, require original signatures.” Through this statement, BALCA seems to indicate that original signatures are not required on recruitment reports. Given the miniscule distinctions made in this case though, the Hammond Law Group suggests that employers provide handwritten signatures on all recruitment reports to avoid the possibility of denials.

DOJ SECURES LARGEST CIVIL PENALTY FOR DISCRIMINATIN CLAIM

The Department of Justice (DOJ) reached an agreement on May 27th with a farm labor contractor, in Bakersfield, California, Luis Esparza Services, Inc. (LES), which resolved claims that LES discriminated against individuals because of citizenship status in violation of the Immigration and Nationality Act (INA). The agreement involved the largest civil penalty to date that the DOJ has ever secured for a discrimination claim under the INA.
As determined during the DOJ investigation, LES required work-authorized non-U.S. citizens to produce documents issued by the Department of Homeland Security (DHS) as a condition of employment, but did not require the same of U.S. citizen workers. This type of additional documentation burdens placed on some employees and not others is prohibited under the anti-discrimination provisions of the INA.

The settlement agreement provided that LES would pay $320,000 in civil penalties; compensate a worker who lost wages due to LES’s employment eligibility verification practices; undergo training on the anti-discrimination provision of the INA; revise its employment eligibility verification policies; and be subject to monitoring of its employment eligibility verification practices for three years.

This case serves as a reminder to all employers that they should have standard operating procedures in place for the completion of Form I-9s that do not discriminate based on national origin and must be followed by everyone involved in the Form I-9 process.

H-1b Visas in the spotlight at Disney

In a story sure to get the attention of legislators in Washington D.C., and in my humble opinion rightly so, The New York Times ran a story today about H-1b workers being placed at Disney and the U.S. workers they were replacing being required to train them. The story was picked up and ran on the front page of msn.com and many other news outlets. Maybe this will be the impetus for Congress to get serious about immigration reform and craft legislation that recognizes the increased need for H-1b workers and provides for the protection of U.S. workers. No one should be asked to train their cheaper foreign replacement. At a time when the unemployment rate for IT workers is under 2% and we just had over 230,000 H-1b visa petitions filed for only 85,000 spots, this black eye on the H-1b program may be coming to light at the right time to force reform.

OCAHO Reduces Fines Notwithstanding Backdating of Forms I-9

The Office of the Chief Administrative Hearing Officer (OCAHO) reduced the penalty for Liberty Packaging, Inc. after finding that although backdating I-9 forms is a serious violation, Liberty Packaging Inc. (Liberty) is a small employer with no history of previous violations and the unauthorized status of the five individuals listed in the NSD was not established. (U.S. v. Liberty Packaging, Inc., 2/24/15) .

Immigration and Customs Enforcement (ICE) filed a complaint alleging that Liberty failed to timely prepare 18 forms I-9 in violation of Immigration Reform and Control Act of 1986 (IRCA). ICE served Liberty with a Notice of Inspection (NOI) on July 31, 2012 and subsequently conducted a Form I-9 inspection in response to which Liberty provided an employee list, recent payroll records and 21 forms I-9. On September 25, 2012, ICE served Liberty with a Notice of Suspect Documents (ND) and a Notice of Intent to Fine (NIF) on March 20, 2013. Liberty’s answer was accompanied by a different set of 19 I-9s. ICE filed their complain with OCAHO on January 2, 2014.

For various reasons discussed in the opinion, ICE asserted that Liberty backdated the forms I-9. As such, they set a baseline penalty of $935 for each of the 18 violations and enhancements totaling 15% were added for bad faith, seriousness of the violations and presence of unauthorized workers. OCAHO in its opinion found that although an employer may not have done anything wrong, they are responsible for the wrongs that may be perpetrated by their agents of a form I-9. Notwithstanding, OCAHO determined that ICE failed to show that the penalties should be enhanced based on the presence of allegedly unauthorized workers in Liberty’s workforce and that a NSD is not sufficient in itself to establish a worker’s unauthorized status. As such, OCAHO reduced the penalty to a rate of $650 for each of the 18 violations.

Several lessons to be learned:

1. Never backdate a Form I-9.
2. Never fire an individual who is listed on the NSD without first allowing them to present other evidence of work eligibility and identity.
3. A NSD is not enough to determine a worker’s unauthorized status.
4. Always cooperate with ICE and retain the services of an immigration attorney with extensive experience with I-9 compliance.

USCIS Policy Memo on Amended H-1b Petitions

On May 21,2015, the USCIS issued new policy guidance for H-1b employers. This guidance was issued following the April 9th Simeio Solutions precedent decision from the AAO which determined that a change in employment outside the area of intended employment was a material change and required the filing of an amended petition. This ruling was a major departure from prior USCIS policy and practice. The May 21st USCIS memo was designed to explain how that new policy will be implemented. The memo makes the following points:
1. An amended petition must be filed BEFORE an H-1b employee can be moved to a new worksite outside the original area of intended employment.
2. A deadline of Aug 19, 2015 has been established for all employers to file amended petitions to reflect the worksite locations of any H-1b worker who has been moved from their original petition location.
3. If an amended petition is pending and a subsequent move is made, a 2nd amended petition can be made and an employee moved. There is no requirement to obtain a decision in the 1st case before filing the 2nd case.

The Simeio Solutions decision has a huge impact on employers in the staffing industry and now this memo requires that an amended petition must be filed before moving an employee, the impact grows. Further, with the memo making it clear that the new policy will be applied retroactively to existing H-1b workers, albeit, with a 90 day grace period, the negative consequences to U.S. employers will be even larger and, the benefit to the coffers of the USCIS will be as well. With an economic impact to U.S. employers easily exceeding $100 million annually, it is unclear how the USCIS decision makers believe that this change in policy is not in violation of the Administrative Procedures Act and should not have gone through the formal rulemaking procedure. Whether any company or trade association challenges this new policy on APA grounds is yet to be seen.

As a practical matter, H-1b employers should take the following actions:
1. Confirm the current worksite locations of all H-1b employees and determine if that worksite has changed from the original petition and, if necessary, take steps to file an amended petition prior to Aug 19, 2015.
2. Communicate to sales and deployment teams that any change in worksite location will take at least 10 days and there is an economic cost to said move that must be considered.