Minnesota Promotional Marketing Company Liable for I-9 Violations

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.

Notice of Filing Is Not Required to List Every Job Duty and Requirement

The Board of Alien Labor Certification Appeals (“BALCA”) recently determined that the notice of filing that must be posted before a labor certification is eligible to be filed is not required to list every job duty and requirement of a position that is being sponsored. In Matter of Eteam, Inc., the employer sponsored the position of “Programmer Analyst.” On the Form 9089, the employer specified that the position required a master’s degree in Computer Science or Engineering and one graduate course in database management and network security. This post-secondary education must have included software development using Unix and Perl. The case was audited and the employer submitted a notice of filing that did not state the education requirement or the coursework requirement of this position. The Certifying Officer denied the case on this basis. The case was appealed. BALCA reviewed a prior case, Architectural Stone Accents, Inc., which held that the federal regulations that govern notice of filings do not require every job requirement to be listed. While BALCA reiterated that notice of filings play an important role in ensuring that employees can provide information to a Certifying Officer about an employer’s application, it reiterated that the federal regulations “only require the [notice of filing] to contain information specific enough to apprise the U.S. workers of the job opportunity. The Employment and Training Administration did not write a regulation that mandates the employer list specific job requirements in a [notice of filing].” Consequently, BALCA determined that the notice of filing offered by the employer in this case was sufficiently detailed to inform U.S. workers of the job opportunity and overturned the decision. This case provides critical information about the content requirements of notice of filings.

May Visa Bulletin

The Department of State (DOS) recently released the May visa bulletin. There were no changes to the “dates of filing” chart. The movement of the dates in the “final action chart” was disappointing. Many categories did not progress at all. The DOS warned that the pattern of downgrades from EB2 to EB3 by Chinese nationals has resulted in no movement for that category which may last through the remainder of the fiscal year.

Temporary Employment Company Liable for Over 465 I-9 Violations

The Office of the Chief Administrative Hearing Officer (OCAHO), recently found a temporary employment company, Golden Employment Group Inc., located in Minnesota, liable for over 465 I-9 violations (United States of America v. Golden Employment Group Inc., OCAHO Case Number 15A00037). Specifically, the Judge found that they failed to timely present 125 Form I-9s and failed to prepare 236 Form I-9s. They also racked up fines for not making sure the employee completed Section 1 of the Form I-9 and other infractions. 40 claims were dismissed because Immigration and Customs Enforcement failed to overcome its burden of proof. This case serves as a warning that use of E-Verify does not protect an employer from failing to properly prepare, retain, re-verify and present when asked a Form I-9 for employees hired after November 6, 1986.

236,000

The USCIS announced that it received 236,000 H-1b cap petitions filed for the 85,000 spots available. They have completed the lottery process and have started to issue receipts. Last year, it took almost 4 weeks for all receipts to be issued. Premium processing cases will begin to be processed on May 16, 2016.

HLG’s April newsletter !

The April 2016 edition of the HLG Immigration Advocate is now available. The issue includes a feature article by HLG partner, Phil Eichorn on the recent OPT STEM program changes.

H-1b Cap Reached !

In news that surprised no one, the USCIS announced today that it had received a sufficient number of filings to reach both the 20,000 U.S. masters quota and the 65,000 regular quota thus requiring that a lottery will be held. They went on to state that they did not know when the lottery would be conducted due to the large number of filings received. Stay tuned for further updates.

Known Employer pilot

DHS has created the Known Employer pilot, which is a pilot program intended to facilitate the process for employers looking to hire workers through employment-based visa applications. The Known Employer pilot is expected to reduce paperwork and delays in processing.

Under the Known Employer pilot, employers will file an application that requests that USCIS predetermine certain requirements. The requirements mainly relate to the employer’s corporate structure and financial health. When making the request for predetermination, employers will create a profile in the web-based Known Employer Document Library (KEDL). The employer will then have to upload documents related to the requirements. Employers will also have to complete and upload Form I-950, Application for Predetermination under Known Employer Program. USCIS officers will then review the documents and predetermine whether the employer has satisfied the requirements for each classification requested.

If USCIS approves the employer’s predetermination request, the employer may then file the immigration petitions or applications for individual employees without needing to resubmit evidence already submitted with the predetermination request with each individual petition or application. Generally, employers must submit the same information about their organization with each petition and/or application. The pilot program would eliminate the need to resubmit documentation.

USCIS is not accepting applications for participation in the Known Employer pilot but we will keep updating the blog with more information about the Known Employer pilot as more news comes out.

Employers Should Continue to use the Form I-9 With an Expiration Date of 03/31/2016

The USCIS has announced that until further notice, employers should continue to use the Form I-9, Employment Eligibility Verification, with expired on 03/31/2016. USCIS is in the process of drafting a new version of Form I-9 and they will provide further information once it becomes available.

Employers are required to complete a Form I-9 to confirm identity and employment verification of all new employees and should have a completed Form I-9 for each employee hired after November 6, 1986. As such, as indicated above, please continue to use the expired form until USCIS issues the new version.

Happy H-1b Cap Day ! Dysfunction Reigns !

Today, April 1st, marks the first day that H-1b cap petitions can be filed seeking a new H-1b visa from the FY 2017 quota. The quota is set at 85,000 total with 20,000 being set-aside for persons with US masters degrees or higher. All H-1b petitions must be filed by a US employer and the pay offered must meet the prevailing wage established by the DOL. All individuals who have filings done for them must have at least a bachelor’s level education. The majority of filings are for STEM positions. As a result of demand exceeding supply, the USCIS has created a lottery system and all filings received in the first 5 business days of April will be included in a random drawing for the coveted visas. The lottery is typically held the 3rd week of April and those petitions lucky enough to be chosen are then processed. Those cases not selected in the lottery are returned to the employers who filed them. Last year, over 220,000 petitions were submitted. Many are expecting over 250,000 this year. The fact that the US immigration policy allows for the selection of highly skilled workers, most filling STEM related, hard to fill positions, by random chance is absurd. Unfortunately, the anti-immigration far right led by Grassley, Cruz, and Sessions have thwarted any attempts to reform the legal immigration system into a system that does a better job of selecting international workers while still protecting US jobs. It is as if they actually are in favor of the status quo i.e. dysfunction as it gives them something to beat their chest about. The rhetoric coming from the Presidential race indicates that we will be left with the lottery for some time.