INCREASES TO I-9 VIOLATIONS AND OTHER IMMIGRATION RELATED EMPLOYMENT VIOLATIONS

Today, the U.S. Department of Justice (DOJ) increased the possible fines and penalties for employers with I-9 employment eligibility violations including the employment of unauthorized workers and/or employers who have violated the anti-discrimination provision of the Immigration and Nationality Act (INA). These increases are due to the Bipartisan Budget Act of 2015 which was enacted in late November 2015 and will take effect on August 1st for violations that took place after November 2, 2015.

Under the interim final rule, the minimum penalty for employment of an unauthorized worker will jump from $375 to $539 and the maximum penalty will jump from $3,200 to $4,313. Those with multiple violations may face a penalty of $21,563. I-9 paperwork violations will increase from a maximum of $1,100 to $2,156 while the new top penalty for unfair immigration-related employment practices violations will increase to $3,563.

I-9 and employment Immigration related violations are enforced by the DOJ through the Office of Special Counsel for Immigration-Related Unfair Employment Practices and the Office of the Chief Administrative Hearing Officer.

Impact of Supreme Court DAPA decision ?

Many people read the headlines last week and saw that the Supreme Court had ruled that President Obama had exceeded his Executive Action authority on immigration and wondered if it impacted any of the employment related executive actions such as H-4 EADs or OPT STEM, etc and the answer is not at all. The Supreme Court SCOTUS DAPA decision impacted only one aspect of President Obama’s executive actions, namely, the DAPA program. All other programs were left intact.

July Visa Bulletin

The Department of State (DOS) has released the July Visa Bulletin. It contains no surprises as the dates during the summer generally move at a snails pace. The bulletin does have some projections for the next two months.

H-1b Lottery Prompts Lawsuits

In the last several weeks, at least two lawsuits have been filed relating to the H-1b lottery. The first filed by AIC and AILA allege that the USCIS improperly counts the petitions filed. The complaint arises out of a FOIA request in which the USCIS failed to provide full documentation regarding the lottery system and the allocation of visas. Many attorneys have long believed that the lottery system is replete with inaccuracies. The second brought by two companies that did not have filings chosen in the lottery, alleges that the random lottery itself is a violation of the statute. We will keep readers updated on these two Federal Court actions.

BALCA Overturns Denial Resulting from Inconsistencies in 9089 Instructions and Form

The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that a typographical error resulting from inconsistencies between the labor certification form and its instructions could not serve as a basis for a denial. In Matter of UBS Securities LLC, the employer submitted a labor certification for a Director, Derivative Business Control Group. In the Form 9089, the employer listed that the position’s primary requirements were a Bachelor’s degree and 60 months of experience. The employer also stated that it would accept an alternative requirement of a Master’s degree and 36 years of experience. Per the federal regulations, primary and alternative requirements must be equivalent. The Department of Labor has historically found that a Bachelor’s degree and five years of overall progressive experience and a Master’s degree and three years of experience are equivalent. The Certifying Officer denied the case because it found that a Master’s degree and 36 years of experience is not equivalent to a Bachelor’s degree and 60 months of experience. In response, the employer argued that the Form 9089 “asks for primary experience requirement in terms of months, while the alternate experience requirement must be entered in terms of years.” Thus, the employer listed a requirement of 36 years in the alternate requirement section when it only required 36 months of experience. In reviewing the case, BALCA determined that the Form 9089 instructs applicants to state the number of years of experience. In contrast, the instructions to the Form 9089 directs employers to enter the number of months of experience. Since there was a discrepancy between the form and the instructions, BALCA found that “such inconsistencies ‘must be construed against the promulgator of the form and / or instructions, not the applicant.’” Consequently, the denial was overturned. It is critical that employers carefully read the requirements of every form submitted to the U.S. government. However, this case does assist employers who are faced with inconsistent requests in a form and its instructions.

Staffing companies and the new OPT STEM rules

Recently, several web-sites have provided opinions that staffing companies can not comply with the new STEM OPT rules. We disagree. One of our attorneys, Matt Minor recently had an article published in ILW.com providing our counter opinion. We are happy to provide guidance to staffing companies for how to comply with this new set of rules.

BALCA Affirms that Travel Language Must be Included in Advertisements

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.

Is E-Verify More of a Hassle Than it is Worth?

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.

H-1b changes coming ?

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.

Four Defendants Charged with H1B Visa Fraud

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.