The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether handwritten dates on website postings that are completed as part of the recruitment for a labor certification case are permissible. In Matter of DGN Technologies Inc., the employer’s labor certification case was selected for audit and the employer provided evidence that it had posted the position on its website as one of the additional recruitment steps. The website postings contained a handwritten note stating that “continuous posting [had occurred] since June 1, 2008.” The Certifying Officer denied the case on the basis that the employer had failed to offer dated copies of its website advertisement. The federal regulations provide that an employer can demonstrate that it conducted recruitment on its website through dated copies of pages from that site. This evidence will constitute “primary evidence.” However, the Department of Labor’s Employment and Training Administration provides in its FAQ’s that an “affidavit from the official with the employer’s organization responsible for the posting of such occupations on the web site attesting, under penalty of perjury, to the posting of the job” is also permissible.” In reviewing this information, BALCA determined that the regulations only state that dated copies must be provided. They do not “specify that the date be generated electronically, nor does it require that the date be accompanied by a signature or attestation of the authorized person responsible for the posting.” Consequently, BALCA reversed the denial of the labor certification. This case provides critical information that discusses what types of evidence are permissible to document that an employer posted a position being sponsored through labor certification on its website.
A NH painting contractor was charged in October 2012 for violations of the Fair Standards Labor Act’s (FLSA) minimum wage, overtime and record keeping requirements. In 2014, the Department of Labor (DOL) obtained a preliminary injunction preventing the contractor from intimidating, retaliating or discriminating again current or former employees involved in the investigation and lawsuit. Specifically, the contractor threatened to call immigration if the employees cooperated with the DOL. A consent judgment was issued in which the contractor was ordered to pay $427,000 to 157 employees who were denied payment of overtime and/or minimum wage. In addition, they were ordered to pay civil money penalties to the DOL, maintain accurate records, provide employees and manager with training on FLSA’s requirements and prohibits them from withholding payment of back wages or damages, demanding, keeping or accepting back wages or damages to be paid or failing to cooperate with the DOL. The lesson to be learned here is to make sure that you comply with all laws when it comes to your foreign and U.S. employees, never threaten your employees into doing anything and to keep and maintain accurate records.
Recently, the White House released a report on modernizing the immigration system and claimed that executive action to implement some of the ideas contained in the 68 page report would be taken. Many of the ideas set forth by the Obama Administration would be welcomed by the business community.
Recently, the Board of Alien Labor Certification Appeals (“BALCA”) issued a decision that considered what type of evidence is needed to demonstrate that a U.S. worker is not qualified for a position being sponsored through labor certification. In Matter of Presto Absorbent Products, Inc., the employer had sponsored the position of “Engineering Manager.” The case was selected for audit and was denied because the Certifying Officer (“CO”) determined that the “employer’s recruitment report made only a generalized statement that U.S. workers did not meet the employer’s minimum requirements . . . Furthermore, the recruitment report did not contain the specific lawful job related reasons for rejection.” The employer’s recruitment report listed that eight resumes had been received for the sponsored role. It stated that the applicants lacked the required experience and “[a]ll applicants were reviewed to determine if they would be able and qualified to perform the duties of the position with a reasonable amount of on-the-job training. All applicants were determined not to have been able and qualified for the position even with a reasonable amount of on-the-job training.” BALCA reviewed the federal regulations and found that they did not “indicate a level of specificity beyond what the employer provided” in regards to disqualifying U.S. workers. BALCA also stated that it is permissible for employers to reject U.S. workers based upon lack of experience. Consequently, the CO’s decision was reversed. This case provides confirmation that U.S. workers may be rejected on the basis that they lack the necessary experience and would not be able to gain this experience through a period of on-the-job training. However, due to the Department of Labor’s recent focus on whether U.S. workers could become qualified for sponsored positions through a period of on-the-job training, the Hammond Law Group suggests that employers may want to provide detailed recruitment reports that specifically discuss why U.S. workers were not qualified and could not gain the necessary qualifications through a period of training.
U.S. Citizenship and Immigration Services has issued a draft template of requests for evidence (RFE) for L-1B petitions and is taking comments on the proposed form, a copy of which can be found here. USCIS will take comments until July 31. This is a follow up to its Memorandum on L-1B Adjudications Policy earlier this year. Even though the new L-1B Adjudications memo has not gone into effect, it appears that both USCIS and practitioners are looking ahead to when the rule does become final. The main benefit that can be gleaned from the RFE template is it that it contains an expansive list of evidence that can be provided to demonstrate that the requirements of an L-1B visa are met, including specialized knowledge.
Over the past year, there have been a lot of changes to the rules affecting H-1b workers and there are more changes on the horizon. HLG will be hosting an immigration seminar in the NYC/NJ area on Fri. Aug 21st focusing on these changes. The format will be very practical and will present a series of hypotheticals to illustrate the changes. We will also be discussing strategies for taking advantage of the future changes. The seminar will be aimed at those in the IT and engineering staffing arena but, will be beneficial for any company that employs H-1b workers. Come hear Mike Hammond and Cadence Moore present. Get more info. and register here.
The USCIS has released a new memo describing its plans to implement and apply the Simeio Solutions case and it provides some relief for employers. The new memo effective as of July 21, 2015 states that the Simeio rule will not be applied retroactively. Changes in work-site location that occur after April 9th remain impacted. The memo also provided until Jan 15, 2016 to cure any moves. We applaud the USCIS for taking into consideration the input provided by its stakeholders and taking this remedial action.
BALCA Determines that Additional Recruitment Steps are not Bound by the Content Requirements of the Mandatory Recruitment Steps
The Board of Alien Labor Certification Appeals (“BALCA”) recently issued a decision in which it considered whether the additional recruitment steps that are completed as part of a PERM recruitment effort must meet the content requirements that are imposed on the mandatory recruitment steps. In Matter of Computer Sciences Corporation, the employer submitted a labor certification for the position of “Program Office Senior Manager.” The case was selected for audit and the employer provided documentation of advertisements placed on its website and on a job search website. These advertisements constituted additional recruitment steps for this case and contained the language “willingness to travel; may require work from home office.” The labor certification filed for this position did not list any travel requirement or the opportunity to work from home. The Certifying Officer (“CO”) denied the case on the basis that these additional recruitment steps violated 20 C.F.R. § 656.17(f)(6) because they contained a requirement “which exceed[s] the job requirements or duties listed on the ETA From 9089.” BALCA reviewed the case and stated that “additional recruitment steps include advertisements placed on the employer’s website and on job search websites and, unlike mandatory advertisements, are not bound by the restrictions of [20 C.F.R. §] 656.17(f)(6).” Consequently, BALCA reversed the decision of CO. This case provides welcome clarification that demonstrates that the additional recruitment steps do not have the same content requirements as the mandatory recruitment steps. Nonetheless, the Hammond Law Group suggests that advertisements that are conducted as part of the PERM recruitment effort should not contain requirements or opportunities that are not listed on the Form ETA 9089.
The Department of State (DOS) has released the August Visa Bulletin. EB3 all other countries continued to move forward, India EB3 saw a rather unexpected jump forward whereas PRC EB3 saw retrogression in a manner similar to EB3 Philippines earlier this year. A return to prior levels when the new fiscal year starts in Oct is expceted for both PRC EB3 and Philippines EB3.