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 ?
When a Department of State Consular office sends an H-1b case back to the USCIS recommending revocation, the USCIS re-affirms their prior decision in approximately 30% of cases. For many other employment based visa cases, the percentage of re-affirmations is significantly lower i.e. L-1A: 18.02%; L-1B: 13.04%; O-1: 19.23%; and, P’s: 25.93%. In our experience, an even higher percentage of cases would be re-affirmed if employers chose to respond to the Notice of Intent Revoke (NOIR) but, often it will be 6 months to a year before the NOIR is even issued and by that time, the need for the employee or the specifics of the project have changed making the case moot. For employment visa cases to be decided on the merits, the DOS and the USCIS need a speedier process.
Last week, the USCIS provided a report to Congress on the characteristics of H-1b workers. 61% of petitions approved were for IT occupations, over 50% of H-1b’s were approved for persons with education beyond a bachelor’s degree, and the number of petitions denied increased dramatically in FY 2012; were among the many interesting facts provided in this report.
The Senate Judiciary Committee spent several days last week discussing the almost 300 amendments proposed by committee members. Many of the more anti-business and anti-H-1b amendments proposed by Sens. Grassley and Durbin were defeated however, several measures did pass. TechServe Alliance has posted a brief summary. Advocacy, education, and lobbying continues to be needed to protect the utilization of H-1b visas by staffing and consulting firms.
Both IT and health care staffing companies have traditionally been major users of H-1b visas. Due to the recent prediction by the USCIS of the H-1b quota for FY 2014 likely being reached in the first week of filing, many staffing companies are concerned that the artificial restrictions being placed on hiring of the best candidates possible will harm their growth in 2013. Staffing Industry Analysts (SIA), a leading professional association for companies employing or using contingent workers, recently published on this topic. One of our partners, Mike Hammond was quoted in the article.
Last week, the U.S. Consulate in Hyderabad announced changes to the process of submission of documents for H-1b and L-1 visa issuance. No longer will they require documents to be submitted in advance to the VFS but, documents must be brought in person at the time of the interview. This change also applies to persons that are part of the BEP program.
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.