Yesterday, the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) announced that it is experiencing problems with its iCERT system. While the iCERT Systems’ application and database are working correctly, the network infrastructure that supports the system is having performance issues that are causing delays in processing cases. These delays are currently impacting H-1B, H-2A, and H-2B cases. OFLC has not stated when it expects these problems to be resolved. The Hammond Law Group will keep you updated as further announcements are made on this issue.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer failed to comply with a request by the Department of Labor (“DOL”) when it only provided evidence of emails sent to eight of seventeen applicants for a position that was sponsored through PERM. In Matter of Accent-Media Productions, Inc., the employer submitted a labor certification for the position of “Computer Programmer.” The case was selected for audit and the employer provided a chart that identified seventeen applicants for the position and eight email responses from the applicants to the sponsoring employer. The Certifying Officer (“CO”) denied the application on the basis that the employer failed to provide documentation that was requested in the audit request. BALCA determined that the CO notified the employer that it must submit evidence of its attempts to contact U.S. applicants through the audit notification. This request was deemed to be reasonable because evidence of correspondence with U.S. applicants should have been readily available to the sponsoring employer and is “important for the CO to consider in determining whether U.S. applicants were properly rejected for a job opportunity.” Since BALCA determined that this request was reasonable and found that the employer’s “failure to comply with [the] request is material enough to constitute a substantial failure,” the denial was upheld. In reviewing an audit request, it is critical that employers ensure that they are providing all of the information that is requested by the DOL.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the Department of Labor (“DOL”) is entitled to a presumption that its audit notification letters are delivered to employers and their agents. In Matter of DGN Technologies, Inc., the employer submitted a labor certification case for the position of “Programmer Analyst.” The case was selected for audit and the DOL asserted that it sent an audit notification letter to the employer’s agent. No response was ever received from the employer or its agent. Consequently, the case was denied. The employer requested reconsideration on the basis that it never received the audit notification letter. The denial was upheld by the Certifying Officer (“CO”) on the basis that the audit notification letter was sent to the address listed by the employer on its Form 9089. The case was forwarded to BALCA. BALCA determined that a lengthy case history established that the CO was “not entitled to a presumption of delivery of mail sent by the National Processing Center in the absence of proof of its internal mailing procedures,” and overturned the denial. While it is critical that employers routinely check their mail for correspondence from government agencies, this case does provide support for the idea that the DOL may not automatically deny a case when the employer failed to respond to a request due to the fact that it never received the request in the mail.
The DOL has released final data for FY 2015 for the PERM program. Almost 70% of applications were filed for IT and engineering positions and almost half of all filings required an advanced degree. The approval rate for cases adjudicated was over 90%. The data and processing times suggest a backlog is forming as they have almost 60,000 cases pending and only processed 85,000 cases during the year. Audit cases are taking almost 18 mos. for review and at present, over 13% of pending cases are under audit review with another 9% under appeal. The President’s directive to look at ways to modernize the PERM program will hopefully address these and other issues.
A NH painting contractor was charged in October 2012 for violations of the Fair Standards Labor Act’s (FLSA) minimum wage, overtime and record keeping requirements. In 2014, the Department of Labor (DOL) obtained a preliminary injunction preventing the contractor from intimidating, retaliating or discriminating again current or former employees involved in the investigation and lawsuit. Specifically, the contractor threatened to call immigration if the employees cooperated with the DOL. A consent judgment was issued in which the contractor was ordered to pay $427,000 to 157 employees who were denied payment of overtime and/or minimum wage. In addition, they were ordered to pay civil money penalties to the DOL, maintain accurate records, provide employees and manager with training on FLSA’s requirements and prohibits them from withholding payment of back wages or damages, demanding, keeping or accepting back wages or damages to be paid or failing to cooperate with the DOL. The lesson to be learned here is to make sure that you comply with all laws when it comes to your foreign and U.S. employees, never threaten your employees into doing anything and to keep and maintain accurate records.
The DOL has released updated PERM stats which reveal some interesting tidbits. The number of PERM applications received this year over the same time period in FY 2014 is up over 25%. Of cases where a decision has been reached, less than 10% have been denied. Over 30% of cases are currently in audit review and almost 10% of cases are pending an appeal. Although it seems like everyone claims to have been filed under EB2, almost 50% of cases were filed under EB3 standards.
On August 25, 2014, the Office of Foreign Labor Certification (OFLC) implemented new password requirements for enhanced security. As such, on or before November 23, 2014, all Permanent Case Management System (PERM) users will be required to change their existing passwords. In addition, PERM users will be required to change their passwords every 90 days. The PERM system will send PERM users’ reminder emails as these dates approach. Please refer to the External PERM Quick Start Guide which can found via the following link for instructions on how to properly change an existing PERM password: http://www.foreignlaborcert.doleta.gov/pdf/PERM_QstartGuide_ExAcct_Mgmt_LB.pdf. A word of warning, if an existing PERM password is not changed with the 90 day period, the PERM user will need to re-activate their account by identifying themselves, selecting a secret question and providing the correct answer.
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 ?