In a victory for legal immigration and particularly staffing employers, the DOL announced today that it was withdrawing its policy memo issued last Fri., which imposed additional requirements on staffing employers and their customers.
Yesterday, the DOL issued a new memo explaining that it will start requiring all secondary employers to file LCA’s for contractors placed at their location. The DOL cites to a new USCIS regulation which is expected to be issued on Tues the 19th which changes the definition of an employer. The DOL specifically states that this memo “better comports with the goals of the Executive Branch policy” The new memo will take effect on July 14, 2021. The Wage and Hour Office also issued a Field Assistance Bulletin implementing the above memo. It is expected that the new Biden Administration will examine this new policy.
And you thought he was done. Not even close. When your goal is to destroy legal immigration and make it out of reach for everyone but, the richest, you keep fighting to the end and that is exactly what the Trump Administration is doing. Today, the DOL released in Final Rule format the rule they had released in interim final format in Oct. The new rule will go into effect in 60 days but, the new wages will not be released until July 2021 and there will be a phase-in period. If you recall, that rule was struck down by multiple Federal Courts due to a complete failure to follow the correct legal procedures and the substance of the rule was criticized relative to its faulty assumptions, poor methodology, and math. The DOL “considered” the public comments, in part pointing out the absurdity of having some entry level wages set at $208,000/year, reviewed the decisions from the Federal judges that ruled against them and then dismissed it all and re-issued a very similar rule. To their credit, they did correct some of their math errors. The new methodology sets the wage levels at the 35th,53rd,72nd, and 90th percentiles. A number of the Plaintiffs who pursued federal lawsuits over the interim final rule have already announced that they will be suing again. There is also an expectation that the Biden Administration will take a look at all of the regulations rushed through by the Trump Team so this may all be moot.
The USCIS has issued an update letting its stakeholders know that we can expect delays in the issuance of receipt notices. (A more obvious statement could not be made as we are waiting on receipts from filings made 3+ months ago) Relative to I-485 and I-765 receipts, the USCIS stated that we can expect “significant delays”. The communication did not give any estimate as to when they will once again be able to provide receipts in a timely manner but, did indicate they were working extra hours to handle all of the filings. Our office and the immigration bar at large has experienced not only delays by the lockbox but, also a significant number of inaccurate rejections. The lockbox facilities are not fully staffed by trained USCIS employees which may be part of the problem.
Today, the USCIS published a new rule in the Federal Register changing the way that H-1b petitions are chosen in the lottery. The lottery has always been a random selection process however, this new regulation would change the process to a wage based system in which persons being paid at wage level 4 would have a higher chance of selection then someone paid at a level 1 or level 2 wage level. It is believed that the new regulation would all but, eliminate any chance at a person being selected if they are offered a level 1 wage. Level 1 wages are typically offered to new grads (hence the designation Level 1) The new regulation makes it easier for employers based overseas to obtain visas for their key employees while making it harder for international graduates from U.S. schools to obtain a visa. Large outsourcing employers are cheering this change as they will be able to easily take advantage of the new rule whereas smaller employers and those who hire new grads, often in the healthcare industry, are decrying this policy change. Whether or not this policy survives a legal challenge or changes by the Biden Administration remains to be seen.
The USCIS recently announced that it was extending the 60 additional days to respond to RFE’s and other filings to include those issued prior to Jan 31, 2021. You can read the notice and all of the filings covered here. The USCIS has been extremely accommodating to filers during this pandemic. Kudos to them.
Recently, the DOJ has filed a lawsuit against Facebook over its PERM program. At its core, the complaint alleges that Facebook did not advertise as effectively or recruit as aggressively for its positions associated with PERM applications as it did for other openings. An excerpt from the press release is telling: “In its investigation, the department determined that Facebook’s ineffective recruitment methods dissuaded U.S. workers from applying to its PERM positions. The department concluded that, during the relevant period, Facebook received zero or one U.S. worker applicants for 99.7 percent of its PERM positions, while comparable positions at Facebook that were advertised on its careers website during a similar time period typically attracted 100 or more applicants each.” It is interesting that the DOJ has not alleged that Facebook failed to follow the DOL guidelines relative to recruitment activities but, is claiming that the recruitment activities expressly permitted by the DOL are ineffective. In this respect, I think we would all agree; the notion that a Sunday newspaper classified section is an effective place to recruit for professional jobs in 2020 is ridiculous. How, the DOJ can make the leap that the failure of the DOL to update its regulations would be the fault of the employer fastidiously following those regs is a stretch at best and an abuse of power at worse. Updating the PERM program to use data and modern recruitment techniques is the answer, not this lawsuit.
The Department of State (DOS) announced last week that they would be resuming some routine visa services as COVID-19 conditions permit. This resumption should allow more appointments to be scheduled and the resumption of 221g reviews.
Specifically, the DOJ alleged that Fleetlogix required these non-US citizens to provide specific and unnecessary work and identity documentations because of their citizenship, nationality and/or immigration status as required by the Immigration Reform and Control Act of 1986 (IRCA) by way of completion of a Form I-9, Employment Eligibility Verification. The DOJ’s investigation found that Fleetlogix required specific documentation, such as I-94s (Arrival/Departure Records), Employment Authorization Documents (work permits) and/or Permanent Resident Cards (green cards), even though the individuals had already presented other valid and legally sufficient documents to prove both their identity and work authorization including drivers’ licenses and unrestricted Social Security cards.
Form I-9 requirements come out of the IRCA. IRCA prohibits employers from hiring and employing an individual for employment in the U.S. knowing that the individual is not authorized with respect to such employment. Employers also are prohibited from continuing to employ an individual knowing that he or she is unauthorized for employment. This law also prohibits employers from hiring any individual, including a U.S. citizen, for employment in the U.S. without verifying his or her identity and employment authorization on Form I-9.
The Immigration and Nationality Act (INA)’s anti-discrimination provision prohibits employers from requesting more or different documents than necessary to prove work authorization and identity. Congress by way of the INA, determined that all work-authorized individuals could choose which valid, legally acceptable documents to present to prove their work authorization and identity on the Form I-9. The INA does not permit employers to request specific or additional documentation if the documents presented are genuine looking documents.
Under the terms of the settlement agreement, Fleetlogix will pay fines/civil penalties of $627,000, create a back pay fund for individuals who lost their jobs due to the discrimination, train employees responsible for the completion of the Form I-9 on the requirements of the INA’s anti-discrimination provisions and change their internal I-9 policies and procedures.