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.
On Friday, the DOL, in compliance with a Federal Court order reverted back to the prior wage methodology which has been in effect for decades. When you check the FLCDataCenter now, the “old” wages will appear.
The DOL also announced that it will accept a request for reconsideration of any PWD issued using the “now struck down wages” regardless of when issued, if filed prior to Jan 4, 2021. The DOL did not indicate how long it would take them to re-issue new PWD’s or whether they would make those a priority but, typically a request for reconsideration takes at least 90 days.
Today, a Federal Judge struck down both the new H-1b regulation which was to take effect on 12-7-2020 and the new DOL regulations which took effect back in October. A link to the decision will be provided as soon as it is made available. As a practical matter, we do not know how long it will take the DOL to revert back to the prior system or to re-open PWD’s that may have been issued while the new regulations were in effect. We also, do not know if the Trump Administration will file an appeal during this lame duck period. We will update as developments occur.
Here is a link to the Court order.
We are only a little over a week away from the new H-1b regulations taking effect. On Mon of this week, oral arguments were heard in the Chamber of Commerce vs. DHS et al in the Federal District Court for Northern California. The Chamber along with a number of other business groups are seeking a preliminary injunction blocking the new regulations from taking effect. The reports from multiple sources with information regarding the content presented at the oral argument was that the Chamber’s position seemed very strong while the government’s position seemed weak on both the facts argued and the law required. Forbes published a summary as did Law360. see links embedded. A summary of the litigation in general is available from the Chamber. A ruling can be issued any day. We will update you as developments occur.
On Friday, the Department of State (DOS) released the December Visa bulletin and the only major change was that the India EB3 Dates for Filing Chart retrogressed by a full year to Jan 1, 2014. As a practical matter, this means that if you are India EB3, and have a priority date in 2014, you only have the remainder of this week to file your I-485. Final Action dates moved forward 4 mos. for both India and PRC EB1; others categories from those countries inched ahead; and all other countries and categories remained current. The USCIS later announced that they will accept I-485 filings in Dec. based upon the Dates for Filing chart.
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.
Senior Partner, Mike Hammond will be speaking at the SHRM Global Mobility and Immigration Symposium on the topic of H-1b RFE’s. Sessions at the conference will cover: recent changes in U.S. immigration law, COVID related impacts to global mobility, and, a look at what we can expect in 2021. The conference is completely virtual and registration remains open.
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.
HNM’s senior partner Mike Hammond, will be speaking at the TechServe Alliance Annual Conference to be held virtually this week. On Wed, he will be hosting a roundtable to discuss changes for the H-1b visa to be expected in light of the Biden win and on Thurs., he will be part of a panel discussing legal minefields to avoid. TechServe serves the IT and Engineering staffing and solutions space.
As of this writing, the election is not yet settled but, we thought it may be helpful to explore a bit about what we may see over the next 4 years if Biden is elected. In sum, we expect to see a quick reversal of many if not all of the Trump immigration policies. Reversing regulations is not as simple as a stroke of the pen. We expect the Biden White House to follow the regulatory procedures so some changes may take some time. Federal litigation that is pending may be immediately impacted as a Biden Administration is not expect to defend the regulations improperly promulgated. The Biden web-site provided a broad overview of his immigration philosophy recognizing the great value that international talent brings to the U.S. Check it out here.