The Board of Alien Labor Certification Appeals (“BALCA”) recently considered whether the failure to include the name of the employer on a notice of filing is fatal to a PERM application. In Matter of G.O.T. Supply, Inc., the employer submitted an Application for Permanent Employment Certification for the position of “Welder-Fitter.” The case was selected for audit and the Certifying Officer (“CO”) denied the case on the basis that the employer failed to include its name in the notice of filing. In response, the employer argued that any potential employee would be able to identify the name of the employer because the notice of filing listed the employer’s President’s name and was posted at the employer’s premises. Alternatively, the employer argued that the failure to include the employer’s name in the notice of filing was a harmless error. In reviewing the case, BALCA reiterated that the federal regulations specify that the notice of filing must contain the name of the employer. It also stated that the notice of filing is “not a mere technicality, but is an implementation of a statutory notice requirement designed to assist interested persons in providing relevant information to the CO about an employer’s certification application,” and, thus, is not “to be lightly dismissed under a harmless error finding.” BALCA determined that in failing to provide the employer’s name, an individual who hoped to provide information to the CO about the application would be thwarted due to their inability to provide the name of the employer. Consequently, the denial was upheld. In drafting notice of filings, it is important that employers include all of the information specified in the advertisement content requirements that have been specified for the PERM program.
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.
The Board of Alien Labor Certification Appeals (“BALCA”) recently considered when the validity period of an ongoing employee referral program begins. In Matter of Mphasis Corporation (successor in interest to AIG Systems Solutions Private Limited), BALCA reviewed a case that was denied on the basis that the recruitment conducted by the employer for the position of “Senior Programmer Analyst” did not occur within the validity period of the prevailing wage determination. Specifically, the employer stated on the Form ETA 9089 that it conducted an employee referral program starting on July 1, 2007. However, the prevailing wage determination validity period was from July 9, 2007 until October 10, 2007. The case was not filed until October 19, 2007. In response to the denial, the employer provided evidence that its employee referral program is ongoing and had been in existence since 2003. Consequently, BALCA determined that the “precise question for determining when the recruitment on the [employee referral program] commenced is when the company employees know a vacancy exists for which they can make a referral.” In reviewing the evidence, BALCA found that the employees were not alerted to this position until it was promoted internally on September 20, 2007. As a result, BALCA determined that the employee referral program did occur within the prevailing wage determination validity period and the denial was overturned. This case provides critical information about when an ongoing employee referral program is considered to have begun.
A $2.5 million dollar settlement was reached between the U.S. Immigration and Customs Enforcement (ICE) and Broetje Orchards, LLC for violations of the Immigration Reform and Control Act of 1996 (IRCA). The multimillion dollar settlement was a result of ICE’s findings during an I-9 audit performed by ICE”s Homeland Security Investigations (HIS) last summer. Specifically, HSI found that almost 950 of the company’s employees may not have been authorized to work in the United States. In the settlement, although Broetje Orchards did not admit any criminal wrongdoing, they did acknowledge that it continued to employ unauthorized workers after being notified by ICE that those employee did not have permission to work in the U.S.
Pursuant to IRCA, employers are required to properly complete and maintain for inspections original Form I-9s for all current employees (with limited exceptions) and for some terminated employee. An employer must retain the completed Form i-9s for terminated employees for a period of at least three years from the date of hire or for one-year after termination, whoever is longer. Audits of this kind have been increasing in number and fine amount in the past few years.
The Office of the Chief Administrative Hearing Officer (OCAHO) reduced the penalty for Liberty Packaging, Inc. after finding that although backdating I-9 forms is a serious violation, Liberty Packaging Inc. (Liberty) is a small employer with no history of previous violations and the unauthorized status of the five individuals listed in the NSD was not established. (U.S. v. Liberty Packaging, Inc., 2/24/15) .
Immigration and Customs Enforcement (ICE) filed a complaint alleging that Liberty failed to timely prepare 18 forms I-9 in violation of Immigration Reform and Control Act of 1986 (IRCA). ICE served Liberty with a Notice of Inspection (NOI) on July 31, 2012 and subsequently conducted a Form I-9 inspection in response to which Liberty provided an employee list, recent payroll records and 21 forms I-9. On September 25, 2012, ICE served Liberty with a Notice of Suspect Documents (ND) and a Notice of Intent to Fine (NIF) on March 20, 2013. Liberty’s answer was accompanied by a different set of 19 I-9s. ICE filed their complain with OCAHO on January 2, 2014.
For various reasons discussed in the opinion, ICE asserted that Liberty backdated the forms I-9. As such, they set a baseline penalty of $935 for each of the 18 violations and enhancements totaling 15% were added for bad faith, seriousness of the violations and presence of unauthorized workers. OCAHO in its opinion found that although an employer may not have done anything wrong, they are responsible for the wrongs that may be perpetrated by their agents of a form I-9. Notwithstanding, OCAHO determined that ICE failed to show that the penalties should be enhanced based on the presence of allegedly unauthorized workers in Liberty’s workforce and that a NSD is not sufficient in itself to establish a worker’s unauthorized status. As such, OCAHO reduced the penalty to a rate of $650 for each of the 18 violations.
Several lessons to be learned:
1. Never backdate a Form I-9.
2. Never fire an individual who is listed on the NSD without first allowing them to present other evidence of work eligibility and identity.
3. A NSD is not enough to determine a worker’s unauthorized status.
4. Always cooperate with ICE and retain the services of an immigration attorney with extensive experience with I-9 compliance.
Recently, the DOL released 3rd Quarter data from the PERM program. The denial percentage remained steady at just over 7% but, the number of approvals dropped by almost 30% and the number of new cases filed, dropped by 7%. Almost 30% of cases pending are in audit review.
Golf International DBA Desert Canyon Golf, an E-Verify employer, was found liable for 129 Form I-9 violations by the Office of the Chief Administrative Hearing Office (OCAHO). This included 125 violations consisting of failure to ensure that employees properly completed Section 1 of Form I-9 and/or failure to properly completing Section of Form I-9 and four violations consisting of failure to prepare and/or present Forms I-9. The total fine was $136,697.00. In its decision, OCAHO made it clear that the good faith defense is only available for technical and procedural Form I-9 violations and that participation in E-Verify DOES NOT exempt an employer from properly completing, retaining and producing for inspection Forms I-9 that relate to its employees. This is a good reminder that all employers should audit their Forms I-9 and review any internal procedures regarding the proper completion and retention of their Forms I-9 on a regular basis. Remember – An employer’s first and most important responsibility is to properly complete a Form I-9 for each new employee regardless of whether or not they use E-Verify.
Based upon information obtained from the recently filed lawsuit, Fragomen vs. Chao (DOL) it is expected by many experts, that PERM cases facing an audit by the DOL will be delayed by over 1 year as the DOL attempts to follow through on its promise to audit all PERM applications filed by Fragomen. For all of the other filers using the DOL system, it is certainly hoped that someone at the DOL will soon come to their senses, recognize the foolishness of their ways, stick their tail between their legs and stop this nonesense. We will update our readers as more news becomes available.
The DOL announced today that all of the PERM filings made by the national law firm Fragomen will be subject to audit due to claims of the law firm being improperly involved in the rejection of U.S. workers. Given the vague nature of the regulation in question, this action could prove to be enlightening and provide a much needed drawing of the lines between the employer, alien, and the law firms’ roles in the PERM process.