The Board of Alien Labor Certification Appeals (“BALCA”) has historically determined that employers must indicate in advertisements that travel is expected when a sponsored position has a travel requirement. In Matter of IT Works International, Inc., BALCA upheld this precedent. In this case, the employer submitted a labor certification on behalf of a “Sales Manager – Technical.” In the ETA Form 9089, the employer stated that the position would require “work at various unanticipated locations throughout the U.S.” However, the newspaper advertisements that were conducted as part of the recruitment effort for this case failed to disclose this requirement. The case was audited and the Certifying Officer denied the case on the basis that the employer failed to disclose the travel requirement. The employer argued that its advertisements “increased the chances of qualified U.S. workers applying because some qualified potential applications who initially would not be willing to relocate might reconsider after the employer had the opportunity to interview them.” BALCA reviewed prior case law and the Office of Foreign Labor Certification’s FAQ’s on the PERM program and determined that the employer’s failure to state the travel requirements in the newspaper advertisements was a “clear violation of 20 C.F.R. § 656.17 (f)(4).” Consequently, the denial was upheld. BALCA has routinely found that employers must include travel requirements in advertisements if the sponsored role involves travel. The Hammond Law Group urges employers to include travel language in advertisements to avoid these types of denials and is happy to advise about appropriate language to include in advertisements that are part of a PERM recruitment effort.
E-Verify is an Internet-based system that compares information from an employee’s Form I-9, Employment Eligibility Verification, to data from U.S. Department of Homeland Security and Social Security Administration records to confirm employment eligibility. While voluntary for most employers and relatively easy to use for all, registering for and using the E-Verify system, without first performing an internal Form I-9 audit and ensuring you have adequate HR resources to complete the E-Verify process in a timely manner, could have serious consequences.
Problems can arise when E-Verify is used incorrectly by an employer. This improper or incorrect use of E-Verify can lead to an investigation from the U.S. Department of Justice Office of the Special Counsel for Immigration-Related Unfair Employment Practices (OSC). Improper or incorrect use could include anything from listing too many List A documents, not running the E-Verify query within the mandated three day after hire timeframe, using E-Verify to pre-screen applicants or using E-Verify to verify the entire workforce. These independent investigations can lead to hundreds or thousands of dollars in fine and penalties. Therefore, it is our recommendation that before you register for and begin using E-Verify, you contact your immigration attorney to carefully review the pros and cons of using E-Verify and to make sure your company is in the best position to head off any potential issues.
Computerworld reported on a discussion in the House on major changes to the H-1b visa and immigrant visas. No bill has been released yet and we are obviously a long way from any change but, at least people known for reasonable stances on business immigration are putting forth ideas. We will keep you updated as information becomes available.
On May 5, 2016, in a California federal court, four people have been charged with conspiring to submit more than 100 fake H-1B visa applications. The prosecution alleges that, “the defendants … knew, these purported end-client companies did not have jobs for the defendants’ H-1B workers, the defendants did not intend to place those workers at those end-client companies, and none of those workers were placed at those end-client companies.” The Department of Justice goes on to say that between 2010 and 2014, a husband and wife used their employment-staffing companies DS Soft Tech and Equinett to sponsor temporary nonimmigrant workers for fraudulent H-1B applications for placements at companies that either didn’t exist or never received the proposed temporary workers and submitted fake documents to government agencies including the Department of Homeland Security and the Department of Labor. The maximum prison term for visa fraud is 10 years, while mail fraud and witness tampering both hold a maximum penalty of 20 years. While this is an extreme example, it is a good reminder that those that don’t follow the rules eventually get caught.
The Board of Alien Labor Certification Appeals (“BALCA”) recently reviewed timing inconsistencies that are listed in the federal regulations that govern the recruitment validity periods for labor certifications. The employer submitted a labor certification for a “Stonemason.” The Form 9089 was mailed to the Department of Labor on September 11, 2009 and received by this agency on September 14, 2009. The employer listed on the Form 9089 that it had placed a state workforce agency job order from March 17, 2009 until April 15, 2009. The Certifying Officer (“CO”) denied the application because it stated that the job order was placed more than 180 days from the date that the Form 9089 was filed. BALCA reviewed 20 C.F.R. § 656.17(e)(2), which states that “if the application is for a nonprofessional occupation, the employer must . . . place a job order and two newspaper advertisements within 6 months of filing the application. The steps must be conducted at least 30 days but no more than 180 days before the filing of the application.” BALCA noted that these statements can be contradictory. In the instant case the employer did submit its application within six months of March 17, 2009 because six months from this date is September 17, 2009. However, there are more than 180 days between March 17, 2009 and September 14, 2009. Consequently, BALCA stated that it would “decline to penalize an employer for the inconsistency [of the federal regulations].” While this case does support the idea that recruitment may occur in the six months prior to filing a labor certification, Hammond Law Group urges employer’s to file all cases within the 180 day period in which recruitment occurred to avoid the potential for denial.
The Department of State (DOS) has released the June Visa Bulletin. As expected, the “dates for filing” chart remained unchanged. Unfortunately, due to high demand from I-485 filings, the “final action date” chart saw major retrogression in the India EB2 and PRC EB2 and EB3 categories. In commentary, the DOS stated that India EB2 is expected to advance forward only a few weeks each month through the end of the fiscal year (Sept 2016). The news is worse for both EB2 and EB3 PRC which are not expected to move forward at all until the new fiscal year (Oct 2016). Retrogression remains a major problem for legal immigrants but, is likely to receive no legislative attention in the foreseeable future.
At a time when the USCIS processing times for H-1 petitions and extensions have grown to over 10 months, the USCIS has decided to reward themselves with an increase in revenue on the backs of US employers and international workers. Today, the USCIS released a proposed schedule of fee increases. Pursuant to the APA, the public is afforded 60 days to submit comments. Our firm plans on submitting comments on behalf of our clients. Of the most commonly used filings by US employers, the I-129 base fee will be increased from $325 to $460; the I-140 from $580 to $700; and, the I-485 from $985 to $1140. The last filing fee increases for the base petitions occurred in 2010. The USCIS claims that the fee increases are necessary to provide service to its customers. What a sad statement.
The Board of Alien Labor Certification Appeals (“BALCA”) recently affirmed that the content requirements that are specified in the federal regulations for newspaper advertisements in 20 C.F.R. § 656.17(f) do not pertain to state workforce agency job orders. The employer submitted a labor certification for the position of “computer software engineers, systems software” and specified in the Form 9089 that the position required five years of experience. The case was audited and denied because the job order that the employer provided stated that the position had an experience requirement of “greater than 5 years.” The employer appealed the decision and noted that the Illinois state workforce agency job order site only provided a set number of experience options that included “3-5 years” and “greater than 5 years.” The employer stated that it choose the option of “greater than five years because it was the most appropriate since ‘3-5 years’ was not an accurate reflection of tis experience requirement.” BALCA reviewed Matter of Chabad Lubavitch Center, 2011-PER-2614, and noted that the requirements of 20 C.F.R. § 656.17(f) only apply to “advertisements placed in newspapers of general circulation or in professional journals.” BALCA also found that the federal regulations that govern job orders are silent in regards to whether the content requirements of 20 C.F.R. § 656.17(f) apply to job orders, which lead it to believe that the Department of Labor “did not intend to impose these content requirements on all types of advertisements.” Many state workforce agencies provide limited options in regards what can be selected for experience requirements. This case instructs the DOL that it may not deny cases when the state workforce agency fails to allow employers to specify the exact requirements of the position.
The U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum, adopting an Administrative Appeals Office (AAO) decision, to provide guidance that applies to and binds all USCIS employees regarding the adjudication of L-1A visa petitions. Specifically, the memorandum clarifies that when determining whether the beneficiary of an L-1A visa petition will primarily manage an essential function, USICS officers must weight all relevant factors including evidence of the beneficiary’s role within the larger qualifying international organization. The guidance clarifies a 2013 decision of the appeals office, Matter of Z-A- Inc., which overturned a Director’s decision denying an extension to stay for an L-1A beneficiary who was serving as a Vice President and Chief Operating Officer of a large Japanese manufacturer. In the overturned decision, the Director had determined that the officer wasn’t employed in a managerial capacity because U.S. operations did not have an “organizational structure” large enough to ensure the executive would not be performing the day to day sales duties. The decision failed to take into account the eight foreign staff located in Japan who worked under the manager, who performed the day to day sales duties necessary. The Japanese parent company is a publicly trade firm with over $900 million in sales.
In overturning the decision, the AAO found that the beneficiary’s responsibilities did primarily consist of managerial duties and that the beneficiary served as a member of the senior management team. The AAO found that the Director erred in focusing on the number of employees without looking at preponderance of the evidence presented which included evidence that the foreign staff performed many of the day to day sales duties required and thus, although the beneficiary may be required to perform some administrative or operational tasks, he primarily manages an essential function of the Petitioner. The case is Matter of Z-A- Inc. –
The Office of the Chief Administrative Hearing Officer (OCAHO) found International Packaging Inc., a Minnesota-based promotional marketing company liable for failing to prepare or present Forms I-9 for 21 of its employees and for substantive errors found in 73 Forms I-9. Form I-9 is used to confirm an employee’s identity and work authorization. Fines have yet to be levied but the government is arguing for baseline penalties of $935 for each violation. The judged stated that employers may be entitled to a “good faith” defense for paperwork technical or procedural violations but that defense has no application to substantive violations, such as those in this case. This is the second recent decision against a Minnesota employer by OCAHO. Last week, as we blogged, Golden Employment Group Inc. was found liable for over 465 Form I-9 violations.