As part of President Obama’s call to action on immigration (in late 2014), an effort to modernize the PERM program was initiated and most US employers were ecstatic; hoping, that the “waste of money Sunday print ads” would become a relic of the past however, earlier this week, the DOL announced that they would not be able to complete any rule-making prior to President Obama leaving office thus making the modernization project dead for now. Guess 2 years wasn’t enough time to figure out that the internet is here to stay and there are better ways to recruit workers than newspaper ads. Hopefully, the next Administration will continue this task (and faster).
On August 25, 2016, the Office of Management and Budget (OMB) approved a revised Form I-9, Employment Eligibility Verification. The new Form I-9 must be published by November 22, 2016. Employer can continue to use the current form until January 21, 2017. After that date, the new Form I-9 must be used. No other editions will be valid.
Late last week, the Department of State (DOS) released the October Visa bulletin. This visa bulletin was particularly anticipated since it was the first bulletin of the new fiscal year. Unfortunately, it did not deliver much in the way of positive news. On the positive side, it did wipe out much of the “short-term” retrogression that raised its head in the EB1 and EB2 categories in Aug and Sept. but, the “Dates for Filing Chart” which is viewed as a predictor of movement for the upcoming fiscal year, fell short of expectations. A comparison of the Dates for Filing chart from Oct 2015, show further retrogression in the EB2 categories for China and India and no movement forward for India EB3. EB3 for the Philippines and all other countries are the only 2 categories with notable advancement. A legislative fix remains sorely needed but, with the ‘build a fence” radicals in charge of both the Senate and the House, no relief is in sight.
Recently, the Board of Alien Labor Certification Appeals (“BALCA’) considered whether a search results page could serve as alternative documentation to dated copies of the posting on the employer’s website. In Matter of Spring Branch Independent School District, the employer sponsored the position of “Elementary (Pre-K-5th grade) – Bilingual (Spanish) Teacher.” The case was audited and the employer submitted a copy from its human resources job search page showing the position’s title, the salary, the position’s classification as professional, and that the role would have a probationary contract. No other information regarding the role was provided on this page. The Department of Labor (“DOL”) denied the case on the basis that the employer failed to provide copies of the website posting that included the language of the advertisement. In reviewing the case, BALCA noted that an employer may provide alternative documentation of its website positing beyond dated copies of the website listing. However, it also found the content of these advertisements must be provided so that the DOL can determine “whether the advertisement is for the occupation listed on the ETA Form 9089 and whether the advertisement was placed in good faith and the job was clearly open to U.S. applicants.” Consequently, the denial was upheld. While employers can use alternative documentation to prove that a position was listed on the employer’s website, the Hammond Law Group suggests that dated copies of the website posting that include the language of the advertisement be included in the recruitment report and in any response to an audit.
Immigration and Customs Enforcement (ICE) served Jula888, LLC (Para Tacos La Chilanga) on August 4, 2014 with Notice of Inspection (NOI) which required production of the Forms I-9 for its employees, along with other business documents by August 7, 2014. On August 13, 2014, Jula888, through their attorney, notified ICE that no records were available to be produced. On December 15, 2014, ICE served Jula888 with Notice of Intent to Fine (NIF) with one count, alleging 32 violations of 8 USC 1324(a)(1)(B). Specifically, failure to prepare and/or present Forms I-9 for 32 employees. ICE proposed a fine of $34,408.00. Jula888 timely filed a request for a hearing before an Administrative Law Judge (ALJ) with the Office of the Chief Administrative Hearing Officer (OCAHO). ICE filed its complaint incorporating the violations included in the NIF, including the proposed fine. On September 21, 2015, Jula888 filed its prehearing statement, agreeing to the first six proposed stipulations, but not the seventh which concerned whether or not the 32 individuals were in fact employees of the company. On December 18, 2015, ICE filed a Motion for Summary Decision contending that it has it burden demonstrating the absence of a genuine issue of material fact as to Jula888’s liability for the 32 violations. Jula888 filed a Response to the government’s Motion for Summary Decision on January 20, 2016 arguing that the Government has not presented any evidence regarding the number of people employed by Jula888. On June 9, 2016, the ALJ ordered the parties to submit additional evidence. Jula888 did not provide any additional evidence. The evidence from ICE included testimony from former employees confirming the number of employees at each location and sworn statements from current employees confirming the number of employees, the fact that they were undocumented and that wages were withheld to pay smuggling fees. Based on the evidence in the record, OCAHO granted the government’s motion but adjusted the fines as a matter of discretion to an amount close to the maximum of permissible penalties.
On Monday, August 11, 2016, the 5th Circuit Court of Appeals vacated a $226,000 fine again Employer Solutions Staffing Group (ESSG) in a ruling that determined that it was not at that time a violation for an employer to have one of its agents inspect original employee documents in Texas and have an employer representative in Minnesota complete the employer attestation in Section 2 of the Form I-9 after reviewing the photocopies of the documents sent by the agent in Texas. In the underlying cases, ICE alleged that ESSG failed to ensure that 242 employees properly completed Section 1 of the Form I-9 or failed to properly complete Section 2 or 3 of the Form I-9, thereby committing substantive I-9 violations. The 5th Circuit said that the INA was unclear as to whether the same person who reviews the original documents must also complete Section 2 or 3 of the Form I-9 and that therefore, it was reasonable to conclude that the attestations were valid as long as the same “entity” both reviews the original documents and completes the Form I-9 attestation. They also found that neither the regulations or the Form I-9 current at that time provided any additional guidance. Indeed, after fining ESSG, but before the Court made its decision, ICE changed the Form I-9 instructions to make it clear that the same person who examines the document must be the same person that signs the Form I-9. Employers who may be in the situation for Forms I-9 completed before 2013 should contact an immigration attorney to determine if the 5th Circuit decision affects their situation. See Employer Solutions Staffing Group v. OCAHO, No. 15-60173 (5th Cir. Aug. 11, 2016).
HLG is pleased to announce that it has opened an office in Los Angeles, California. Senior attorney Cynthia Perez will be the managing attorney. The office will handle a variety of corporate and family based immigration cases. The office is located downtown at 4221 Wilshire Blvd.
The Department of State (DOS) has released the September Visa Bulletin. The Dates for Filing chart remained unchanged however, once again, the USCIS has determined not to honor the dates for I-485 filings. The Final Action Dates chart was largely unchanged however, the EB3 category for the Philippines, India and all other countries showed slight forward movement. The DOS also announced that it has made the final calculation for FY 2016 preference limits and the Employment based limit was 140,338 with the per country limit set at 25,644. We are expecting better news in the October bulletin however, legislative relief for retrogression is baldy needed.