And they say ignorance and poor advice doesn’t pay off ! In this case it sure did. A Federal Judge ruled in favor of an IT Staffing co. and stated that they did not willfully violate the DOL’s posting regulations when they failed to post at 3rd party sites where they placed H-1b workers because they had tried to post at those sites and personnel at the company thought that trying really hard was sufficient. The ruling does NOT stand for the proposition that postings are not required at the actual worksites as the Court acknowledged that is the law. I also think it would be a mistake to think that the ruling stands for the proposition that if you try really hard that you are compliant. Rather, I think this ruling should be viewed in the context of an over-reaching DOL trying to claim bad acts i.e. willful acts when the facts supported negligence or ignorance. As any prosecutor will tell you, don’t over charge or you risk ending up with a not guilty verdict. Did the company clearly violate the DOL regulations by not posting at 3rd party worksites where their H-1b workers were placed ? yes. But, did they deserve a fine of almost $200,000 ? The Court obviously thought no and found a way to serve justice. I also think the facts in this case cry out for a legislative fix. What is the proper course of action when a customer says that, “you can’t place that notice on our premises “? In this case, the company had documented emails and letters to their customers requesting them to post the required notices and yet they were met with refusal after refusal. Many of their customers added to their level of ignorance by telling them that they did not have to post at the work-site location. Surely, the brilliant legislators in Washington can come up with a solution to this problem. Anyone say national registry of postings ?
Over the past several weeks, the DOL has been denying PERM cases for IT professionals which allow for engineering degrees as an educational requirement or alternative. This new policy has been widely reported by AILA attorneys and others. The explanation by the DOL is that an engineering degree is not the type of degree that would normally be acceptable for an IT position. For those of you who are currently holding IT positions and have an engineering degree, you must have just gotten lucky in getting your job. Once again, the DOL has demonstrated its uncanny ability to break from the practices of the real world. What is ironic is that the DOL currently has an open position for an IT professional and amazingly it specifically states that an engineering degree is an acceptable educational background. In only approximately 15 minutes, we were able to uncover no less than a half-dozen other Federal government agencies hiring IT professionals and stating that an engineering degree was an acceptable educational background. We are hopeful that DOL HQ will intervene and provide some additional training to its Certifying Office in Atlanta and correct this policy. In the interim, employers are being forced to file BALCA appeals to protect priority dates, insure the ability to extent H-1b’s beyond the 6 year limit, or avoid new costly recruitment campaigns. Even if this clearly erroneous policy position is quickly corrected, a significant amount of unnecessary cost will have been expended by employers and the delay created and the cloud of denial will have affected many foreign nationals.
According to recent statistics released by the DOL, there is a greater scrutiny of PERM applications. Over 40% of all applications currently pending are either under audit or supervised recruitment. Of the over 40,000 cases with decisions this fiscal year (10-1-2011 to date) over 15% have been denied.
Earlier this week, Senator Grassley publicly announced that he had released his hold on HR 3012. If you recall, HR 3012 was a bill that had passed the House by a margin of 389-15 and essentially eliminated decades of national origin discrimination by eliminating the per country limits applied to the distribution of immigrant visas (green cards). Unfortunately, when HR 3012 reached the Senate for consideration, Senator Grassley singularly put a hold on it, much as a petulant child will threaten to take his ball and go home if everyone else refuses to play by his rules. As oft is the case in politics, if you have an unpopular provision that stands no chance of success standing on its own merits, you hold a popular piece of legislation hostage until everyone caves. As a strategic ploy, Machiavelli would be proud and Senator Grassley finally got his way and succeeded in attaching additional rules to the H-1b program. (As an aside, I agree with Senator Grassley that the H-1b program does need review and reforms but, unlike this approach, I’d like that review to be done in the open, with a full public hearing and any proposed changes accepted or rejected on their merits.) The amendment that I think will most adversely impact employers is not the annual review of employers that have more than 100 employees and have at least 15% H-1b workers, or the lack of any judicial review, or even the change which allows the DOL to investigate an employer for possible LCA violations without a complaint but, it is the change that allows the DOL the unfettered ability to delay the issuance of an LCA for an indeterminate amount of time. Under the present system, the DOL must certify an LCA within 7 days unless it is “incomplete”. This time limit insures that employers can quickly file an H-1b visa petition. This quick turnaround is particularly important given the small number of H-1b visas available each year under the quota and in circumstances where H-1b workers are transferring from one U.S. employer to another. Under the Grassley amendment, there would be no such 7 day requirement and an investigation and delay in the issuance of an LCA can be initiated by the DOL under the vague rubric of ” clear indicators of fraud, misrepresentation of material fact, or obviously inaccurate”. If fraud hadn’t been so bastardized by the USCIS previously and on the record, then maybe this wouldn’t be so alarming but, fraud has been defined to include such factors as: an address change, having less than 25 employees, less than $10 million in revenues, and a web-site under construction, among others. When a U.S. employer chooses to hire an H-1b worker and expend the $5,000 to $10,000 in attorney and government fees required, it is looking for certainty in timing and adjudication. Over the past 2 years, the certainty associated with adjudication has been removed as the USCIS and the DOS by internal memo and policy have changed the rules where today, you aren’t even certain that a software engineer with a US Master’s degree is going to given an H-1b visa and now, if this amendment takes effect, the timing of the process will give way to uncertainty. Senator Grassley, keep your investigations and annual reviews because as an attorney, I applaud extra regulatory requirements and burdensome reviews that require my clients to retain me and pay me copious amounts of money but, initiate the investigations after the certification of the LCA’s. You can always revoke the LCA’s and impose large fines if you truly find fraud. To do otherwise, will cause employers, often smaller ones, to lose business opportunities and will encourage the outsourcing of projects abroad where the start of the project need not be delayed until the completion of an LCA investigation and the filing of an H-1b visa. The vast majority of U.S. employers want to play by the rules but, in turn, they are seeking certainty and assurances that the government agencies will also play by the rules. With this latest amendment, we will now have neither.
Recently, the DOL released stats for PERM cases. Of particular interest is that the denial/withdrawal rate has increased to over 25% and of the over 24,000 cases currently pending, over 6,000 are being audited. Processing times for cases with the exception of BALCA appeals remains under 1 yr which by historical standards is excellent.