PERM and Inadvertent Errors

images.jpegThe 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.

What Type of Questions Can an Employer Ask At A Job Interview?

For immigrants, it can sometimes be tough looking for a job, as there are employers who are simply not interested in hiring people on temporary visas.  For employer, it can be difficult to know what you can and cannot ask about someones immigration status without running afoul of discrimination laws.   Recently the Office of Special Council for Immigration Related Unfair Employment Practices (OSC), which is part of the Office of Civil Rights at the Department of Justice, was asked about several different types of questions that an employer might ask, and if those types of questions were allowable under the anti-discrimination laws.  Here are the exact employer questions that were posed:

 A. Do you now, or will you in the future, require sponsorship (e.g., H-lB visa status, etc.) to work legally for THE COMPANY in the United States?

B. If you will require sponsorship, do you currently hold Optical Practical Training (OPT)?

C. If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying US institution in Science, Technology, Engineering, or . Mathematics (STEM), as defined by Immigration & Customs Enforcement (and as outlined in the following government website: https://www.ice.gov/sites/default/files/ documents/Document/2016/ stem-list.pdf?

As can be seen, these were fairly specific questions aimed at either determining if the person would require sponsorship, and/or if they had their own source of employment authorization for a good period of time.  Here is the response from the OSC:

As you know, the statute prohibits denying protected individuals employment because of their real or perceived immigration or citizenship status. U.S. citizens and nationals, refugees, asylees, and recent lawful permanent residents are protected from citizenship status discrimination in hiring under the INA. Accordingly, an employer that asks all of its job applicants whether they will require sponsorship now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C. 1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant visa holders (e.g., STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to violate the INA’s prohibition against citizenship status discrimination.

So, interestingly, as long as you ask ALL job applicants these questions, there should be little danger of running afoul of the discrimination laws.  However, the OSC went on to say:

However, asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship status discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Therefore, we caution employers against asking detailed questions pertaining to status that may lead to such confusion.

The above should give some pause to employers who want to go beyond simple questions made to ALL applicants.  Even if you follow the above, that is no guarantee that you will not be referred to the OSC, as an applicant can still allege that they felt discriminated against, or that the questions made them feel as though they were not welcome to apply (for those in a protected class).    It is also important to remember that the above is ONLY in relation to discrimination based upon immigration status.

There are other forms of discrimination including national origin discrimination that does extend to those with work authorization cards.  Here is what the OSC says about this type of discrimination:

In addition, all work-authorized individuals are protected from national origin discrimination under the anti-discrimination provision. Accordingly, individuals who believe that they were not hired based on national origin-for example, their country of origin, accent or appearance-may allege discrimination on this basis.

So  even though not hiring someone based upon their need for sponsorship would not violate one provision, it may violate this provision if the applicant can show that they were discriminated upon because of their national origin, accent or appearance.  This is something else to keep in mind, especially for the HR personal carrying out the interviews.

If you have any questions leave a comment below or send me an email.  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.

July 2016 Visa Bulletin and Check-In with DOS

Unknown.jpegThe Department of State (DOS) released the July visa bulletin recently and Charlie Oppenheim, the person at the DOS who is in charge of the visa bulletin also updated the American Immigration Lawyer’s Association on what further movement or backlogs can be expected in the near future.

For family based cases, there was not much movement at all.  Below is a table showing the movement.

Family Based All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
F1 2 Months 2 Months 2 Months 2 Weeks 1 month
F2A 1 Week ! Week ! Week None 1 Week
F2B 2 Weeks 2 Weeks 2 Weeks None 1 Month
F3 None None None None 1 Month
F4 1 Month None None None 1 Month

For employment based, there was also not a lot of movement.  Again, the movement and new dates are listed below:

 

Employ.

Based

All Chargeability Areas Except Those Listed China – Mainland Born India Mexico Philippines
1st C C C C C
2nd C None (Jan 1, 2010) 1 Month (Nov 1, 2004) C C
3rd 2 Weeks (Mar 1, 2016) None (Jan 1, 2010) I Month (Oct 22, 2004) 1 Month (Oct 22, 2004) 3.5 Months (Feb 15, 2009)

In terms of future movements, we will look at family based categories first.

FB4- China: For China, the FB-4 category just recently retrogressed and will remain at its current date through July, and perhaps through the rest of the fiscal year (it will depend on usage for FB-1 through FB-3).  However it will return to the prior cut off date by November of this year.

FB-4 India:  Similar to FB-4 China, FB-4 India recently tracked the FB-4 Worldwide final action date until it retrogressed in June. However, unlike FB-4 China, the final action date for FB-4 India will definitely remain at January 1, 2001, through September. Mr. Oppenheim predicts that FB-4 India will advance to the former July 2003 cutoff date early in the next fiscal year, but expects that recovery to happen more slowly than for FB-4 China. Mr. Oppenheim anticipates that the FB-4 India date will reach late 2002 for October, and may fully recover to July 2003 by the end of the calendar year.

Moving on to employment based categories:

EB-2 and EB-3 China:   There will be no forward movement in these categories for the rest of this fiscal year (the fiscal year ends on September 30, 2016).  We will have to see what the new fiscal year brings, but hopefully there will be forward movement shortly after the new fiscal year.

EB-2 and EB-3 India:  There may be some moderate movement forward in September, but it depends (see next category)

EB-2 Worldwide:  It is looking increasingly likely that this category will become unavailable in September.  However, since the new fiscal year begins October 1, they will, again, become current on that date.

EB-1 for India and China:  Similar to EB-2 Worldwide, these categories will most likely become unavailable in September but go back to current in October.

If you have any questions leave a comment below or send me an email.  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.

USCIS, EAD Cards and Adjustment Interviews

UnknownWhen you go in to USCIS to be interviewed for your I-485 application, it has been the practice for USCIS to take your EAD card at that time.  Why did they develop this policy?  Really who knows.  It makes no sense as you are not yet approved and need the EAD to travel and work.  Despite this, USCIS has routinely done these (they say only in cases that they are going to approved, but my experience is that they do this in every case).

Recently the American Immigration Lawyer’s Association (the Bar Association for Immigration Lawyers) met with USCIS on this issue and, eventually, USCIS changed their position.  They have informed offices that they should return the EAD card to applicants at the end of the meeting.  If the office does not, you can ask them to return it based upon the Central Office policy.  We are glad that USCIS agreed to this as keeping the EAD card, especially when there are cases where the office may expect to have the case approved quickly, but is unable to get it approved quickly (perhaps the officer leaves and the case is not re-assigned for a couple of weeks or months, perhaps something else comes up).  Leaving a person without the EAD leaves them without proof of ability to work or travel, and with less proof of status in this country.

In addition, USCIS informed AILA that an “ADIT stamp may be provided before the arrival of the Permanent Resident Card at the discretion of the field office,” and that “a new LPR will be recognized as employment authorized, based on LPR status, in the e-verify and SAVE systems, should an inquiry be made between the date that a Form I-485 is approved and when the Permanent Resident Card is received.”

These are also welcome changes to current policy.  If you have any questions leave a comment below or send me an email.  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.

Does Hiring an Attorney Increase Your Chances of Success with USCIS?

I have had many potential clients ask me this question, and I wish I could give a simimages-1.pngple “yes” or “no” answer. There are two things I can say for sure. First, just the fact that you have an attorney, while it does not make it more likely, in and of itself that the case would be approved, it does make sure that the officer is aware that they cannot (or should not) play games with your case (try intimidation tactics, raise issues not supportable by the statute or regulations, etc.). Second, hiring an attorney can, in most cases, help you get your case together and filed quicker than you would on your own, help to ensure that USCIS will get all information that they need up front to make their decision, and help to ensure that the application is presented in a way that USCIS prefers. All of these things can make it more likely that your case is approved, and approved quicker.

Complex cases (All employment based and self-sponsored green cards, H-1Bs, L-1s, E-1s, E-2s, E-3s, Os) can benefit quite a bit by having an attorney. Most attorney’s you hire for these types of cases will have filed many of these cases, so they are more familiar with what USCIS is looking for, especially in terms of what documents help and what documents hurt your chances of success. Similarly, they are more aware of how USCIS likes the case to be organized, and how it can be organized to prevent (as much as possible) the USCIS mailroom from loosing documents. A good attorney will also be able to help in terms of ensuring that the best evidence is put forth first, as opposed to evidence that, while it may seem important, does not impress USCIS and could, because it is put up front, obscure the better evidence in the packet.

Some other types of cases, such as family based cases, may not benefit quite as much from an attorney as generally, these types of case are more straight forward. However, there are still a couple of considerations to think of. First, many questions on the forms are not clear and easy to make mistakes on. Sometimes this is fine, but in other cases, it could lead to major issues as USCIS could decide that you are trying to commit fraud or make misrepresentations on major issues (or, at least, what they consider a major issue) to get a green card. Second, when more complex issues arise (crimes, time in the US out of status, illegal work, illnesses, etc.) it may be best to get an attorney to help sort out what they law is, and how these actions can affect your eligibility. Lastly, generally an attorney can help get the application together and filed quicker and can usually assure that all required documents are submitted with the application, preventing potential RFEs down the road (although these cannot always be avoided). In addition, an attorney could certainly help if any other issues arise during the case.

Overall, I would say you are certainly well served to meet with an attorney about your case to determine how they can help you with your case, especially if your goal is to get it filed as quickly, and easily as possible.

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.

How Important is a Complete I-9 Form for Each Employee?

Unknown Everyone is familiar with the I-9 form, and for many employer, it seems unduly burdensome and they treat it as a formality – as long as the person has the right documents, whether the form is fully complete or not doesn’t really matter,. However, according to our law, and, in some ways more importantly, ICE and our Courts, it does matter quite a bit. 8 USC §1324a(a)(1)(B) makes it a violation of law for simply failing to complete the I-9 form fully, regardless if the person you are hiring is actually authorized to work or not, regardless if they area a citizen or an illegal alien. And in case you think that Immigrations and Customs Enforcement, the agency that enforces this through site visits, would allow inconsequential, or small errors slide, here is one case that you may be interested in.

Niche Inc. a company that produced goods for our Department of Defense was audited this year by ICE. ICE found 177 violations of the above statute. Most of the violation were for I-9 forms that were incomplete, but on file, some were for I-9 forms that were completed late, and 1 was for having no I-9 on file. It should be noted that there was NO allegation that any of the workers were not allowed to work, as they all were. The only issue was the lack of complete (or missing) I-9s. ICE determined that the company should pay $888.25 per violation, which came to a total of $157,220.25. Not an inconsiderable amount, especially considering the crime.

The company did appeal this decision to OCAHO (Office of the Chief Administrative Hearing Officer) who is the final arbiter of such disputes. OCAHO lowered the fine to $66,850 ( a fine of $600 for one failure to prepare and I-9, $500 for each of the 11 delayed completions, and $350 per violation for the 165 incomplete forms). They also allowed the company to use a payment schedule. The reasoning for lowering the fee and allowing the payment plan was that Niche was a small company and supported the war effort, and that Niche usually kept documentation and used E-Verify. Based upon the above OCAHO stated the company showed good faith.

images-1What the above shows is that, while the form part of the I-9 process seems redundant or superfluous, it is important to complete the forms fully and on time and to keep records of all such forms i n employee files. Failure to do so could result in large fines. If needed, having someone come in to audit your I-9 files to ensure they are complete, without errors and all required documents are attached can be an economical idea in the long run.

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.

October Visa Bulletin and Check in With the Dept. of State

Because of the new format of the Visa Bulletin, it will be easier for me to break these updates into two sections:  Section 1 will discuss the Final Action Date; and, Section 2 will discuss movements in the Dates for Filing section.

Final Action Date Movements:

Family Based:  Most categories moved forward somewhere between 1-2 months.  Some of the categories for the Philippines, etc. moved forward a little more than that (up to six months) but that was only in a couple of categories.

Employment Based:

EB-1:  Still current for everyone

EB-2:  Big move in China (which we had indicated could happen as early as October) from 2006 to January 1, 2012.  Unfortunately, India went the opposite way – from January 1, 20016 to May 1, 2005.

EB-3:  Most of the world stayed at August 15, 2015, however there was movement for certain countries.  China, once again, moved forward rapidly to October 15, 2011 (from 2004) and the Philippines moved from December 22, 2004 to January 1, 2007.  Unfortunately, once again, India retrogressed somewhat, going from December 22, 2004 to March 8, 2004.

Other Workers:  Again, most of the world stayed at August 15, 2015, the Philippines and India saw the exact same movement in this category as was stated above for the EB-3 category.  China progressed from January 1, 2004 to January 1, 2006

Dates for Filing

As this is the first month for this new section, we will just look at what the dates are.  Also, every month at the beginning of this section I will indicate whether USCIS is accepting Adjustment of Status Applications based upon this date (they are going to make this decision on a monthly basis).  It is also important to remember that the dates in this category are based upon the Department of State’s prediction of where the Final Action Dates will move within the next year.

For the Month of October USCIS will accept I-485 application based upon this date.

Family Based:  Most categories have a Date for Filing about 1 year or so ahead of the Final Action date.  A good example is the F2A (Spouses and Children of Permanent Residents).  The Final Action Date is April 15, 2014 and the Date for Filing is March 1, 2015.

Employment Based:

EB1:  As with the Final Action Date this is current for all countries

EB2:  This is more interesting.  While most countries are current, India and China are backlogged in this category.  China, for the final action date, is in 2012, but the Date for filing is at May 1, 2014.  So anyone from China with an approved or pending I-140 in the Eb-2 category with a priority date on or before May 1, 2014 (and in the US legally) can file their I-485 come October 1, 2015.

More interestingly, India, which saw their Final Action Date actual go backwards to 2005, has a Date for Filing of July 1, 2011.  As stated above, this means that the DOS feels that they will be getting close to this date in the next year or so.

EB3 and Other Workers:  This is at September 15, 2015 (about 1 month ahead of the Final Action Date) for most of the world.  Exception are India, which is at July 1, 2005 (meaning there will not be much movement in this category for India over the next year), China, which is at October 1, 2013 for the EB3 category and January 1, 2007 for the Other Worker Category, and the Philippines, which is at January 2, 2015 for both categories (again, foreshadowing that there will be good movement in the Final Action date in these categories for the Philippines in the next year).

Check in With Charlie Oppenheim

The American Immigration Lawyers Association had its monthly check in with Mr. Oppenheim, the person at the DOS who is in charge of setting the above dates.  Basically, they just reviewed the new format of the Visa Bulletin with him.  However there was one item worth mentioning. When discussing what, if any impact, the Dates for Filing would have on the Final Action Dates, Mr. Oppenheim felt there would be little change except that By having USCIS allowing the filing of the I-485 based upon the Dates for Filing will give the DOS a better grasp of the actual numbers of applicants out there waiting for immigrant visas.  This will result in less wild swings in the dates and more steady movements forward (hopefully).

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.