The DOL has announced that an unexpected volume of H-2b filings today has crashed the iCert web-site making it unavailable for at least a day or possibly longer. The iCert system is used for LCA’s for H-1b cases and for PWD’s for PERM cases. We will update you when it is back on-line.
The DOL is offering training sessions to go over the new LCA ETA 9035 form which went into effect last week. For more details and to register go here. The DOL has explained that the new form is part of its fraud prevention efforts. You can view the new form and the accompanying instructions at the DOL site.
Yesterday, the Department of Labor’s Office of Foreign Labor Certification (“OFLC”) announced that it is experiencing problems with its iCERT system. While the iCERT Systems’ application and database are working correctly, the network infrastructure that supports the system is having performance issues that are causing delays in processing cases. These delays are currently impacting H-1B, H-2A, and H-2B cases. OFLC has not stated when it expects these problems to be resolved. The Hammond Law Group will keep you updated as further announcements are made on this issue.
In a decision released last week, the AAO declared that a work-site location change outside of the original MSA requires the filing of an amended H-1b petition. This change will have significant impact on staffing cos., many whom have followed DOL and USCIS HQ guidance which supported the conclusion that only the filing and posting of a new LCA was required when an employee’s work site changed. The I-129 form itself declares that an amended petition is not required when changing the location of an H-1b employee if you have filed and posted an LCA at the new work-site prior to the move. It is not known whether USCIS HQ supports this AAO decision or will issue further clarifying guidance to essentially overturn this decision. In the meantime, this decision leaves employers in an era of uncertainty. HLG will be hosting a teleconference for clients on Fri. April 17th to discuss this topic. More details will be released early this week.
If your H-1B employee is not properly terminated you may be liable for the remainder of their prevailing wage. Amtel Group of Fla., Inc. v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, slip op. at 11 (ARB Sept. 29, 2006), established the requirements to effect a bona fide termination of H-1B employment and end employers’ obligations to pay wages promised under LCAs: (1) expressly terminate the employment relationship with the H-1B nonimmigrant; (2) notify USCIS of the termination so that the petition may be cancelled, and; (3) offer to pay the reasonable cost of return transportation to his or her home country. In almost all situations these steps should be followed to protect your company from paying back wages.
However, there are situations where an employer will not be liable for wages after termination even when it fails to follow the above three steps. A recent Administrative Review Board case Kuanysh Batyrbekov v. Barclays Capital outlined one such situation, when there are multiple H-1B employers. In this case, it was found that a bona fide termination of employment can occur and end back wage liability for an employer that proves it (1) expressly notified the H-1B employee that it terminated the H-1B employment, and (2) thereafter, the H-1B employee secured USCIS’s approval for a “change of employer.”
Thus, if you have terminated an H-1B employee and they have secured another H-1B petitioner, you no longer have an obligation to pay them their prevailing wage for the remainder of their LCA.
HLG partner, Mike Hammond will be a panelist on a webinar being presented by the American Immigration Lawyers Association (AILA) entitled “Essential Compliance Issues for Employers-H-1B and the LCA” on Oct 28th.
The DOL recently released its performance report for FY 2011. This covers data for prevailing wage determinations and PERM/labor certification programs, among others.
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.
Several sources are reporting that Senators Grassley, Brown, and Schumer have reached a compromise that would eliminate the per country limitations for immigrant visas, create a special E3 visa for persons from Ireland, and require an annual DOL audit of all employers with more than 100 employees and 15% H-1b holders. It would also eliminate the ability to obtain LCA’s in 7 days. But, we caution, don’t get too excited or too upset just yet. As with all politically charged bills, a lot can change between now and the President taking the cap off of the pen and signing it into law. We will keep you updated as developments occur.