DOL – Immigration Briefs

Big Win: Court Overturns latest USCIS and DOL rules regarding H-1Bs

Recently both the DOL and USCIS adopted new rules regarding H-1bs. We reported on them here. Just this week a US District Court in California found that USCIS and DOL violated the Administrative Procedures Act in promulgating these rules without allowing time for the public to comment on the rules before they went into effect.

In general, under the APA, government agencies must give the public a reasonable period of time to review, and comment on proposed rules. Once that period has elapsed, the agency then needs to consider the responses and only then can they issue the final rule and put it into effect (although it is usually only in effect 30 days after the final rule has been published. There are exceptions to this rule that allow agencies to publish final rules and then conduct the comment period, where the agency can show that emergency circumstances would require such an act. In the case at bar, both USCIS and DOL claimed that, because of the Corona Virus pandemic and its effects on the Economy, that it created the need for the rules to be implements as soon as possible and that this justified forging the usual rules. The District Court disagreed.

In a strongly worded opinion, the Court stated that, without even considering other factors, the fact that the President issued the Executive order telling the agencies to review such provisions over six months ago, and the fact that the agency has stated that they have been considering such provisions for well over 1 year, clearly shows that, in fact, the agencies do not consider such things “emergencies”. The court granted the Plaintiff’s motion for Summary Judgement and found that USCIS and the DOL violated the APA and the rules were unenforceable. The Court applied this ruling nationwide and to all persons, even those not a direct party to the action.

For those unfamiliar with the rules that were overturned, the DOL rule changed the way in which the DOL was calculating prevailing wages. It use to look at the average range of salaries for a position, and set 4 levels corresponding to approximately the 19th percentile, the 34th percentile the 45th percentile and the 68th percentile. The new rule had the level one wage starting at the 50th percentile, and the other 3 levels went up from there. This significantly raised the wages that companies would have to pay for foreign workers. The USCIS rules changed the definition of what a “specialty occupation” was, making it harder for employers to show that certain positions, especially computer based ones, actually qualified for an H-1B visa. It also limited agencies that contract out their employees to one year H-1Bs (and placed certain other requirements on them). The Court overturned these rules and they are no longer in effect (assuming that there is no appeal, and the Appeals court does not stay the decision). The DOL is in the process of changing back its database to the previous levels.

If you have any questions about this important ruling, please do not hesitate in contacting our office.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

New H-1B and Prevailing Wage Regulations

As you may know, USCIS implemented new regulations on the H-1B process, and the DOL implemented new regulations on the Prevailing Wage process. While there is at least one Court Case pending seeking an injunction on both of these regulations, it is still worthwhile going through the major changed made by both these regulations

Prevailing Wage Regulations

First, in terms of the Prevailing Wage regulations, the simple result is that the prevailing wage will be going up quite a bit. The old system used the 17th percentile for level one. The new one uses the 45th percentile – quite a difference and resulting in higher wages for low-level workers. It should be noted that private wage surveys can still be used to show that the DOL Prevailing Wage is incorrect.

It is interesting to note that in justifying this increase, USCIS cites only one report – and that one report sites to only one instance where the current prevailing wage model MAY provide a wage lower than that actually prevailing in a given geographic area (and I say may because the example is not very clear nor does it seem to actually provide the correct information).

H-1B Regulations

For the H-1B regulations, there are several major changes.

There will now have to be a direct relationship between the field of the degrees and the duties: While this may not sound restrictive, it is. This is USCIS’s way of trying to require sub-specialization. In other words, for example, you cannot say that a position would require an engineering degree – you would need to specify the specific engineering degree (mechanical, electrical, etc.) and show how that relates to the duties – same if you say that more than one such specialization would be ok – you need to show how each degree relates to the duties. General degrees are no longer acceptable as well
Bachelor’s degree is always required: No longer can just show that it is usually required for the occupation/position, but you must show that it is always required for entry into the occupation or position. So positions that are listed as “usually” or “normally” requiring a bachelor’s will no longer be sufficient. Likewise,
Provides a new definition of US Employer: This definition, among other things, will define the employer-employee relationship. It will allow USCIS to weigh the various factors as they will actually be in the position – in other words, the question is not whether the employer has the “right” to control the employee or the “right” to provide the instruments or tools for the employee to work, but whether the employer does or will actually do such things in the real world. It also lists additional factors they will look at to show that the person is actually being supervised by the sponsor and not another party.
Contracts: Third-party placement will require contracts and will only be good for 1 year or the length of the contract – whichever is shorter. Also, the contract needs to list the requirements of the position as imposed by the third-party.
Site Visits: If the third party refuses to allow a site visit, USICS can (and most likely will) deny or revoke the H-1B.

The above are the major, but by no means all, the changes made by the regulations. Many of the above changes were attempted by USCIS through various policy memorandum. However the Courts clearly stated that they could not make such changes via memo, so now USCIS is seeking to make those changes via regulations.

Lastly, it should be noted that both these regulations are currently in effect. USCIS and the DOL felt that they were of such importance that they required immediate implementation, forgoing the usual comment and revision period.

If you are affected by any of these changes, please set up a time to talk with me via the links on this webpage. We are happy to discuss how these regulations may impact you and ways to prevent such impacts.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Potential Government Shutdown and What it Means for Immigration

imgres While it is not the first time that there has been a potential, or actual, shutdown of the US Government, it still does raise many questions about what, if any, immigration services will continue during any potential shutdown. Below is a list of agencies and what they will be able to do, and what they will not do, during a shutdown:

Department of Labor (DOL): Would not be impacted by a government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.

USCIS: USCIS is a funded via user fees (application fees), so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds. This includes EVerify (including myEVerify and customer service), the EB5 Immigrant Investor Regional Center Program, Conrad 30 J1 doctors, and nonminister religious workers. As announced by USCIS on January 20, 2018, those programs may be suspended or otherwise impacted. In terms of the programs and cases that USCIS cannot work on during the shutdown, while USCIS has not stated how it will handle such cases, in 2013, USCIS accepted late I129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.

NOTE: USCIS confirmed that DACA renewal processing will continue during any

DOS: Visa and passport operations are feefunded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.

CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR: Immigration court cases on the detained docket will proceed during the lapse in congressional appropriations while nondetained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only nondetained dockets will not be open and will not accept filings.

CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Please call us with any specific questions. Thank you.

H-1B/PERM Update – Who Can Pay Fees?

punitive-damages Recently, an Administrative Law Judge ruled against the Department of Labor (DOL) in a very interesting case allowing the employer to recoup fees from an employee for the H-1B visa process. Before going into the specifics of the case, it is important to understand what the DOL regulations are in this area.

The DOL, in its regulations governing both the PERM and H-1B process, has stated that the employer must pay the employee the higher of the actual wage for the position at the employer OR the prevailing wage. The DOL has gone further stating that certain deductions from an employee’s paycheck, while allowable under the law, are not permissible under the prevailing wage laws. Therefore, if those deductions bring the employee’s salary below the higher of the actual wage or the prevailing wage, then the employer is violating the regulations. These impermissible deductions include the filing fees and attorney fees (in fact all fees) for the H-1B and PERM processes, as the DOL sees all those fees as the employer’s responsibility.

One other issue in this area is what exactly is the “actual wage”. It would seem to make sense that it is the wage that the employer is actually paying the employee. However, the Department of Labor has not interpreted it this way. Instead, the Department of Labor makes the employer average the wages of all employees in the same OR substantially similar positions (positions that require the same education and skills). The Department of Labor reasoning is that they do not want the employer to impose a lower wage on a foreigner that a US worker, even if that lower wage is higher than the Prevailing Wage. This is the formula the DOL mandates for determining what the minimum wage that can be paid to an employee would be.

Now we can discuss the actual case. The case was Administrator v. Woodmen of the World Insurance Society (10/26/2016). In the case, the Woodmen of the World Insurance Society (employer) hired an H-1B non-immigrant had them sign a repayment agreement for the attorney and other fees. This particular employee was let go prior to the end of the H-1B, and the employer deducted the fees from the employee’s final paycheck, which included unused vacation time. It is important to note that the unused vacation time more than covered the H-1B fees that the employer recouped. The DOL audited the case (it is unclear if the employee complained (most probable) or it was a random audit) and determined that the money that the employer deducted was an impermissible deduction from the employee’s paycheck.

The DOL made two important findings. First, the DOL stated that, despite the fact that the employee was paid higher than the prevailing wage and the actual wage (as determined using the formula above), the employer was still liable. The DOL stated that in such cases the actual wage is actually just the wage paid to the employee. Therefore ANY impermissible deduction would bring the wage below the actual wage. The DOL further stated that the payments made to the employee for his unused vacation time in his last paycheck also could not be used to make payments as doing so would put the employee in a worse position than similarly situated US Citizen employees who do have these fees deducted from their paycheck. However, it is important to note that the DOL said that the fees for premium processing where NOT an impermissible deduction and therefore the employer could deduct those.

The Administrative Law Judge looking at this case only looked at the second argument relating to the vacation time and did NOT rule on what the actual wage was as it was not necessary for the case. In his ruling, the Judge stated that it IS permissible to make such deductions from unused vacation time as long as the employer makes similar deductions from US Citizen paychecks. For example, the Judge stated that the employer in the case at bar also deducted tuition that the employer had paid for an employee from such paychecks if the employee did not meet the terms of the repayment plan agreement. Therefore, according to the Administrative Law Judge, such deduction do NOT affect wages and, since US Citizens are treated similarly, does not put non-immigrants in a worse position than US Citizens. Once again, it is important to note that the unused vacation time payment more than covered the fees in question (the employee was due about $9000 in unused vacation and the attorney and filing fees were only about $4000).

This is the first time I am aware of, that an employer has been allowed to recoup such costs from an employee and sets out clear parameters for employers who would like to have such repayment agreements to follow.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Timelines for Prevailing Wage Determinations Now More Than 4 Months

Screen Shot 2016-10-11 at 9.31.54 AM.png The DOL recently reported that Prevailing Wage requests for both H-1B and PERM cases are taking about 5 months to process. For those planning to file an employer sponsored PERM case, this means really advance planning is needed. Prior to advertising it is important to have the prevailing wage determination, otherwise you may have to re-do the advertising if the determination comes back higher than anticipated. For this reason we almost always advise our clients to wait for the prevailing wage determination before advertising.

Practically, this means you need to prepare the prevailing wage request (usually about a 2-4 week process), wait for the determination (5 Months), begin advertising and recruitment (2.5 months) and then you can file the PERM and wait for a decision (3-10 Months depending on whether you are audited or not). In total you are looking at a minimum of about one year for the entire process. Waiting to begin until your last year of H-1B is simply not possible anymore. Waiting to begin until your last two years, is still putting things off until to late, considering the PERM road is very rarely without some unforeseen delay. Really, you should try to begin as soon as possible, just to make sure that should there be any issues, there is sufficient time to redo any steps that need to be redone.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

PERM and Inadvertent Errors

The current labor certification process known as PERM has been around for several years now. While it was originally touted as being a streamlined, easier way to do the labor certification process that would get rid of backlogs, etc. it has not turned out that way at all. Instead, it has become what I would call a mess. The Department of Labor is no longer interested in just protecting workers, which is what the labor certification process was created to do. The idea behind the system was to ensure that employers followed a process that was intended to appraise US Workers of the actual job and job requirements and that those US Workers were not scared off from applying, and were given a fair chance at the job opening. In addition, the process makes sure that those US Citizens are only denied the job for valid, job related reasons. The Department of Labor, however, has decided that any mistake in paperwork, no matter how minor, should be grounds for a denial whether or not it actually affects whether US workers were adequately appraised of the opportunity and whether or not it means that the employer did or did not follow the correct procedures. A couple recent cases illustrate this.

The first case (Matter of Karam Kaur Khasriya LLC, 7/14/16) shows that BALCA (the appeals board for denied labor certification cases) does have a sense of irony. In this case an employer submitted a recruitment report that stated that “no qualified persons applied” and that “there were no resumes to submit” to the DOL. The DOL officer determined that the statement “no qualified persons applied” could mean that unqualified people applied, and therefore, the employer should have provided those resumes and a complete recruitment report in response to the Audit, which it did not. Therefore the officer denied the Labor Certification. In its motion to reconsider, the employer did submit a revised report clearing up the language by saying that “no person applied”. The DOL Officer stated that the revised report did not overcome the deficiency and upheld the denial

BALCA, in looking at this case, determined that the officer was correct in denying the labor certification initially because its interpretation of the language was reasonable. In looking at the revised report, BALCA noted that documents submitted in a Motion to Reconsider are not automatically part of the record unless the officer agrees to consider the document. In this case, BALCA stated, the officer stated that the revised report did not overcome the grounds for denial, therefore, according to BALCA the officer considered the report. Furthermore, BALCA stated that the officer did not explicitly state that the report would not be accepted, therefore a reasonable interpretation of the language used by the officer was that the report was accepted. BALCA then went on to find that the revised report clearly showed that no one applied and overcame the grounds for denial, so the case was certified and approved. BALCA showed that “reasonable” interpretations are a two way streak.

In two other cases, BALCA overturned denials where the advertisements where not exactly what was listed in the Labor Certification application. In one case the ads listed a wage range, whereas the labor certification application listed one wage. In the second case, the ad listed 24 months of experience without stating what job titles or areas would suffice for the experience and the labor certification application listed 24 months experience in a particular job area AND, in the alternative, 24 months experience in other job areas. In both cases BALCA stated that the ads reasonably appraised applicants of the job being offered and did not create an impediment to anyone applying. Considering that the differences between the ads and the application were inconsequential at best, it is hard to understand why the case was denied by the Department of Labor to begin with.

The above demonstrates two important principles. First, the Department of Labor will sometimes deny cases on very spurious and minimal grounds. It pays to check and double check all paperwork and try to make it all as consistent as possible and to follow the rules. However, because of the DOL’s tendency to pick on very small issues, there is no way to protect against all possibilities. This leads to the second principal: Appealing such a denied case can be a good idea in many cases. While it use to be that BALCA would basically act as a rubber stamp for the DOL (except in some egregious cases), recently (in the past year or two) BALCA has become much more independent and is now truly carrying out its function of overseeing this process. BALCA is now infinitely more reasonable in its interpretations and willingness, when it can, to overlook small mistakes as long as the overall process was sound. Considering the point of the process is to protect US Workers NOT to penalize employers who make inconsequential mistakes, this approach is welcome.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Recent PERM Issues resolved by BALCA

Recently, BALCA (Bureau of Alien Labor Certification Appeal), the agency that hears appeals when a Labor Certification is denied, has made several important decisions. This post will describe a couple of the most important decisions.

Accent-Media Productions, Inc., 2012-PER-712 (September 23, 2015)

We advise all our clients on the documents that need to be kept. In that list we include documentation of contact with those who apply for the position. While this documentation is not listed as a required document that needs to be retained under the statute or regulations, we have seen DOL ask for it before and it is a good practice to keep it. Now, this is doubly true.

An employer was requested by the DOL during an audit to provide the evidence of his contact with the applicants. The employer had contacted the applicants by email, but did not provide such documentation to the officer and the case was denied. While it should have been a simple matter for the employer to provide the emails in a motion to reconsider, that is not allowed. Only documentation that is either asked by the officer (for the motion to reconsider) OR information that was unavailable to the employer at the time of the initial request can be included in the Motion to Reconsider. Instead, the employer appealed the case to BALCA claiming that the documents were not required to be retained by the employer, and, therefore the the employer was not required to provide them to the officer and the case could not be denied on that basis.

While the above is correct, there is a provision that allows the officer to request additional evidence if the request is reasonable and a failure to provide the additional evidence would amount to “substantial failure…to provide required documentation.” Now, while it is clear that the evidence requested was reasonable, how could it be said that by not providing this information (which is not “required documentation”) could be viewed as a substantial failure to provide required documentation? According to BALCA it was necessary evidence to determine whether the applicants were rejected for lawful, job related reasons. I think what BALCA is trying to say is that the officer has a right to have confirmation that what they employer states on the recruitment report actually occurred as reported. In other words, the officer is not required to trust the word of the employer that it did what it said it did.

DGN Technologies 2012-PER-00423 (September 3, 2015)

In this case, the employer filed a PERM case with the DOL. The DOL officer sent out a Audit Notification Letter requesting documentation about the recruitment process to the employer. When the employer did not respond, the case was denied. In a Motion to Reconsider, the employer argued that it had not received the notice send out by the employer and requested the case be reopened and the notice send out again. BALCA re-opened the case and ordered that the officer re-send the notification and give the employer the requisite time to reply.

BALCA stated two reasons for overturning the denial: First, since the Officer had no proof that the document was mailed (outside of its word) and did not provide proof of the mailroom procedures to the judge to show that such procedures would lead one to believe that the document was mailed, that there is no presumption that the document was mailed or received. Second, the judge stated that even if such documentation were available and there were a presumption that it was mailed and received, it is a weak presumption and the affidavit of the employer that it did not receive the documents, and the lack of motive for the employer to ignore the audit notice, all lead to the conclusion that the notice was not received by the employer. Therefore, the denial was vacated.

This shows that BALCA is not above requiring the same type of documentation (proof of mailing, etc.) from the DOL as it requires from employers. But more importantly, it also shows that when there is sufficient indication of honesty, the DOL should trust the word of the employer. This is in contrast to the above case in which an employer could have serious reasons to mis-represent the reasons for denial of a particular applicant as it could help the case be approved. Therefore the DOL does not have to rely solely on the word of the employer in that case.

It is always important to remember that PERM cases are difficult not because the procedures are necessarily difficult, but because the Department of Labor is looking for any reason to deny the application. Even the fact that the employer did not receive a notice from the DOL, is enough for them to deny a case and make you start over from the beginning. Competent is important for these type of cases.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.