The Department of Justice (DOJ) finalized a settlement agreement with Fleetlogix Inc. (Fleetlogix) regarding claims that they discriminated again non-US citizens who were work authorized. Fleetlogix is based in San Diego, California and operates offices nationwide that provide cleaning and transportation services to rental car companies.
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.
Category: Green Cards
As everyone is aware, late on June 22, the President issued a new proclamation suspending the entry for certain foreign nationals seeking to enter the U.S. on H-1B, H-2B, J-1, and L-1 visas (and applicable dependents such as H-4 and L-2). While we do not believe that this proclamation will have the intended effect of freeing up jobs for U.S. workers, we do believe that the effect will be limited to those in specific situations.
The Executive Proclamation applies only to those outside the U.S. on the effective date (12:01 am on June 24, 2020). Any foreign national currently in the U.S. will not be affected by this proclamation, either for current application or future extensions or visas at the U.S. consulate. We expect the main group that will be impacted is H-1B CAP cases filed as Consular cases. They will not be able to enter the U.S. until next year regardless of approval and visa period. H-1B CAP cases filed as a Change of Status in the US will not be affected.
Even if a person is outside the U.S, the Executive Proclamation applies only if the person does not already have a valid visa on the effective date or a valid travel document. Those with a visa stamping currently in their passport may continue to use it to enter the U.S. as normal. However, we caution to be prepared if traveling in the U.S. as there will be additional review by the officer to determine whether a person is exempt from the Proclamation.
The J-1 restriction is limited to only interns, trainees, teachers, au pairs and camp counselors; it does not restrict entry for researchers, physicians or any other J-1 category.
As a result of the is order, anyone who is affected by the Executive Proclamation will be unable to obtain a visa unless they meet one of the exceptions which includes:
(1) any lawful permanent resident of the United States;
(2) any person who is the spouse or child, as defined in the Immigration and Nationality Ac;
(3) any person seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(4) any person whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
It is worth reemphasizing that visas not listed, such as E-1, E-2, E-3, O-1, P, TN (Canadian and Mexican), are not included and entry on these visas can continue as normal. Furthermore, the filing and processing of U.S. permanent resident applications (Application to Adjust Status) have not been impacted by this Proclamation. USCIS and DOL may continue to process such applications.
If you have questions about a specific scenario not covered above, please contact your HNM attorney. Stay safe.
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H-1b Cap Lottery Update
The USCIS announced earlier this week that almost 275,000 registrations were submitted by U.S. employers for the 85,000 available lottery spots. This number was an increase of over 33% when compared to last years 201,000 filings. This increase is attributed to the new electronic registration process as well as the robust economy (remember that time only a few weeks ago). Of the 275,000 registrations 46% were for individuals with a US graduate degree.
The period for filing completed petitions opened on April 1 and will end on July 1, 2020. For individuals that need to take advantage of the cap-gap rules, the full 90 day filing window is not applicable and those petitions must be filed prior to the expiration of the OPT EAD.
Given the realities of COVID-19, and the number of lay-offs occurring, it is unlikely that all persons selected in the lottery will have petitions filed for them which will then open up the opportunity for those not originally selected to then be selected and possibly at a time when the economy is in a better state.
A Federal Court in DC has handed the USCIS a stinging defeat saying that its employer-employee definition and practice of issuing shortened approval notices is illegal. Congrats to attorney Jonathan Wasden for his fighting this battle. Read a copy of the decision here. If you have an H-1b petition that was illegally shortened by the USCIS, we may be able to obtain relief for you via this case. Please email me directly at mfh@hammondlawgroup.com We will work with Mr. Wasden to have your case added to this litigation, if appropriate.
In a recent case, the Board of Alien Labor Certification Appeals (“BALCA”) revealed the potential problems of using one advertisement to support multiple applications and how employers may avoid these potential issues. In Capgemini America Inc., 2013-PER-02219 (May 29, 2019) the employer submitted an Application for Permanent Employment Certification (“Form 9098”) for the position of “Computer Systems Analyst.” The employer’s recruitment materials for this application all advertised multiple “IT openings” and listed numerous job requirements, some of which were not listed on the Form 9098. BALCA affirmed the Certifying Officer’s denial, explaining what while employers may use a single advertisement to support multiple applications, the advertisement must make clear if some of the listed job duties apply to only certain positions. Since the advertisements in question did not clarify which of the listed job duties applied to only some positions, the advertisements failed to apprise U.S. workers of the job offered.
This case is thus a reminder that when using a single advertisement to support multiple applications with divergent job duties, employers must carefully draft their advertisements to specific when some of the listed job duties do not apply to all of the job openings.
The Board of Alien Labor Certification Appeals (“BALCA”) recently suggested how an employer may demonstrate that on-the-job training is necessary for a position. In Microsoft Corp, 2014-PER-00615 (February 25, 2019) the employer rejected an applicant after an interview, finding the applicant was not sufficiently familiar with Scripting, C++, HTML, and Window as required. The Board affirmed the denial and held that the employer had failed to adequately document that the applicant could not qualify after a reasonable period of on-the-job training. BALCA stated that “more than a bare assertion is needed to prove that it is infeasible to train new workers within a reasonable period of on-the-job training.” The court then explained that an employer may demonstrate that on-the-job training is required in the following ways:
documentation from a vocational expert comparing the exact job requirements in the ETA Form 9089 to Applicant C.P.’s education, knowledge, experience, and skills; industry experts explaining the minimal requirements necessary to commence work in the position and why training in noted deficiencies is an not acceptable course of action; or an affidavit of the hiring official detailing the deficiencies noted with the basic job requirements and establishing a business necessity as to why the deficiencies cannot be corrected with any period of on-the-job training.
While some experts argue that this case is overreaching, the case is nonetheless a reminder that employers should explain in detail why on-the-job training is required for a particular position when denying an applicant on this ground.
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TechServe Webinar
Senior partner, Mike Hammond will be a speaker at the TechServe Alliance webinar discussing H-1b visas. The webinar will focus on issues facing IT and Engineering staffing/solutions firms.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether an employer should interview an applicant during the recruitment process in The Bank of Tokyo-Mitsubishi UFJ, LTD. In this case, the Employer filed an Application for Permanent Employment Certification (“ETA From 9089”) for the role of “Analyst/Systems Specialist-Systems Office for the Americas.” The case was audited and denied on the basis that the Employer unlawfully rejected a potentially qualified U.S. applicant without an interview. BALCA upheld the denial. First, the Employer required an Associate’s Degree “in any field” or 36 months of experience in “[r]elated tech exp w/systems analysis, design&dvlpt [sic], w/.NET, C#, C, C++, VBA.” Therefore, the fact that the Applicant did not list an Associate’s Degree on his or her resume was not an appropriate basis of disqualification. Second, the Applicant had more than 15 years of software development experience so it was reasonable to conclude that he may have 36 months of experience in the necessary skill sets. Notably, BALCA also rejected the Employer’s argument that the Applicant was not qualified because he had experience in “SQL programming language” and the Employer required technical development experience with “SQL Server (AF11).” BALCA explained that this did not matter because Section H of the ETA From 9089 did require experience with a particular type or version of SQL.
This case is thus a sobering reminder that employers should error on the side of caution and interview (or inquire further regarding) possibly qualifying U.S. applicants.
On August 9, 2018, USCIS again changed the way that unlawful presence is calculated for F, M and J students but for the better! See the new memo here.
For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M non-immigrant files a reinstatement application within the five month window and while the application is pending with USCIS.
Further, and most importantly, USCIS has removed the retroactive application of unlawful presence for student who fail to maintain status after August 9, 2018. Meaning that for all future cases, unlawful presence does not start accruing until the day after it has been found that the student has failed to maintain status.
HLG applauds this move by USCIS to help students stay in the U.S. lawfully.
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Privacy Policy
HLG issues updated privacy policy in light of GDPR.