Recently, applicants who hoped to obtain a visa stamping appointment at a U.S. Consulate in Canada were unable to schedule appointments after February 13, 2015. The Department of State reported that this was due to the fact that the U.S. Consulates in Canada were upgrading their visa appointment system. The updates were complete on February 1, 2015. While the transition to this new system was occurring, appointments were frozen between February 13, 2015 and April 1, 2015. Now that the upgrade is complete, the U.S. Consulates in Canada are making more appointments available. The release of these appointments is expected to continue through the coming weeks. If you are interested in attending a visa stamping appointment in Canada, we suggest that you frequently check visa appointment availability to review available appointment dates and times.
Employer Solutions Staffing Group II (ESSG), a large MN company with six to eight thousand temporary employees on its payroll, was recently fined $225 for “creating false attestations” on Section 2 of the I-9. Specifically, ESSG reviewed copies of the employee’s I-9 documents “without ever seeing the individuals whose documents they examined.” This is a clear failure to comply with the I-9 regulations as it is Section 2 that is the core of the employment verification process. This case is important for many reasons. First, it is further evidence that employers must be diligent when completing their I-9s. This is especially true for staffing companies who may employ remote hires. Employers – You must always review the original and unexpired identify and work authorization documents of each and employee and this must be done in the presence of the employee. Otherwise, how can you properly attest that you have done so? Second – E-Verify will not excuse such a failure to comply. In fact, it is a requirement of the E-verify system that you properly complete an I-9 before you run an E-Verify query. Thus, the affirmative defense provided by the regulations would be unavailable to an employer who creates a false attestation on an I-9. Finally, notwithstanding that no unauthorized workers are hired, this type of failure to comply with I-9 requirements is an exceedingly serious offense that could lead to a maximum penalty of $1100 per violation as well as other sanctions. In fact, in this case, ESSG was fined $935 per violation.
In Valorem Consulting Group v. USCIS, the United States District Court for the Western District of Missouri considered whether it was arbitrary and capricious for USCIS to grant an H-1b visa for only a one year validity period when the Beneficiary was expected to work on multiple projects for different clients. In this case, the District Court noted that the Administrative Procedures Act provides that it could only overturn USCIS’s decision if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The District Court reviewed the case and noted that the record showed that the Petitioner was a consulting company that offered a broad range of professional services to its clients. The Beneficiary was expected to “provide consulting services that vary depending on the client’s needs.” Documentation from the Petitioner and from two end-clients was also submitted. The court found that USCIS initially denied the case on the basis that the evidence the Petitioner had submitted was insufficient to demonstrate that enough specialty occupation work would be available. USCIS had expressed “concern that at some point [the Petitioner] could assign [the Beneficiary] to work for a client on a project that no longer qualified as a ‘specialty occupation.’” After an appeal was initiated, USCIS overturned the denial and approved the case for a one year period. The court dismissed the remainder of the claims other than the validity of the one year period. In reviewing the case, the District court noted that the nature of the Petitioner’s business led to the conclusion that it could not “represent what [the Beneficiary] would be doing on a regular and recurring basis.” It also upheld USCIS’s reliance on the Neufeld Memorandum. It stated that the Beneficiary was expected to provide services for the Petitioner’s clients and “that these tasks varied in nature and duration, making it difficult for USCIS to confirm that [the Beneficiary] was entitled to an H-1b visa and, if so, for how long.” Consequently, the District Court determined that USCIS’s decision to provide only a one year validity period for the Beneficiary’s H-1b was not arbitrary or capricious.
At the end of 2014, the Board of Alien Labor Certification Appeals (“BALCA”) considered what employee benefits might be considered a “term and condition” of employment that should be listed in an advertisement that is placed as part of a recruitment effort. In Matter of Needham-Betz Thoroughbreds, Inc., the employer submitted a labor certification for the position of “Farm Manager.” The case was audited and the employer explained in the audit response that the employee was given the option to live rent-free on-site at the job location. The DOL denied the case on the basis that the recruitment that the employer conducted failed to inform potential applicants of the opportunity to live at the job site for free. Under the PERM regulations, advertisements must “not contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL determined that the chance to live rent-free at the job site was a term and condition of employment that U.S. workers should have been apprised of. The employer appealed the denial. BALCA reviewed contradictory case law and found that free housing was a term and condition of employment that should have been listed in the recruitment. Specifically, BALCA stated that “the benefit of free housing is not a standard benefit attached to a job opportunity. Free housing for an employee is a huge income enhancement that is not readily assumed to be part of an employment opportunity, unlike the other more typical benefits such as health insurance or vacation days.” Through this statement, BALCA recognized that health insurance and vacation days are not benefits that must be listed in advertisements that are conducted as part of a recruitment effort. However, more unusual benefits, like free housing, should be stated. This case provides important information about the types of benefits that an employer must list in the recruitment it conducts for labor certification cases.
On January 13, a bipartisan team of senators reintroduced legislation now being called the Immigration Innovation Act or I-squared, to reform the immigration system for highly skilled workers. The bill was introduced back in 2013 but failed to move through Congress. While comprehensive immigration reform appears to be dead in the water, many tech lobbyists are hoping that a tech targeted bill could gain traction even in a Congress controlled by Republicans. The highlight of the bill is to increase the number of H-1B visas to 115,000 and allow the annual cap to increase up to 195,000, depending on demand. Also, spouses of people with those visas (H4) would also be able to work in the U.S. (a nod to President Obama’s Executive Action). AILA has shown its support for the legislation.
The Department of Homeland Security (“DHS”) expects to launch the “Known Employer” pilot program by late 2015 which is designed to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers. The pilot program is designed to make adjudications more effectively and less costly and reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.
U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) would jointly implement the pilot program. A goal would be to expedite or otherwise facilitate legitimate cross-border business travel along the northern border ports of entry. Doing so is a binational commitment under the North American Free Trade Agreement as well as the U.S.-Canada Beyond the Border initiative.
We will provide additional information about the “Known Employer” program in the coming months.
In a recent case, U.S. v. Keegan Variety, LLC, 11 OCAHO no. 1238 (2014), the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) spent tens of thousands of dollars (think daily salaries of the investigators, the Judge and his/her staff) to collect $500 from an employer for two I-9 violations. Keegan Variety is a mom-and-pop convenience store in Van Buren, Maine on the Canadian border. The store employed only two people – a mother and cousin of the owners. While we understand that regulations regarding employment verification and work authorization must be followed, there is something to be said for wasting the taxpayers money to prosecute small family owned businesses. Maybe a written warming would have been appropriate in this situation. However, the moral of the story for each and every employer is that obviously the U.S. government is not above wasting the taxpayers’ money to prosecute you for violating I-9 regulations, no matter your size. For further information, please contact us for more information on how you can remain I-9 compliant. To read the case I am discussing above, please see: http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume11/1238.pdf.