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Immigration Blog

DOL Nullifies Use of Employer-Provided Wage Surveys in H-2B Program

AUTHOR:  Otieno Ombok.

Calling the Department of Labor regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations (PWDs) for H-2B workers arbitrary and capricious, and finding that they  violate  of the Administrative Procedure Act, the U.S. court of appeals  in Philadelphia has vacated the DOL regulations at 20 CFR §655.10(f) and the Department’s 2009 H-2B Wage Guidance. Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, No. 14-3557 (3d Cir. Dec. 5, 2014).

Responding to this decision, DOL announced that, effective December 8, 2014, it will no longer issue H-2B PWDs based on employer-provided wage surveys. DOL advised that pending PWDs seeking to utilize employer-provided surveys will be given the appropriate Occupational Employment Statistics wage for the requested occupation. Further, employers whose prevailing wage determination was based an employer-provided wage survey, but whose H-2B Applications for Temporary Employment Certification have not yet resulted in a final determination by the Chicago National Processing Center, will be notified of their new wage obligation along with their certification letters.

The DOL announcement is devastating news to employers that utilize H-2B temporary foreign workers to meet their seasonal labor shortage needs, as DOL’s default OES-based wage determinations set the mandatory minimum wage prohibitively high – as much as $4-$5/hour higher than the market wages reflected in private wage surveys.  Because the DOL’s wages do not appear to reflect accurately the actual industry/market wage, H-2B employers particularly in the landscaping and seafarming industries have been relying on private surveys to establish a fair prevailing wage for their seasonal workers.  This decision essentially nullifies this practice, creating a significant wage differential that ultimately will make many contract bids unprofitable.

The administration of the H-2B program, particularly the determination of H-2B prevailing wages, has been much litigated.  Although previous litigation had caused DOL to abandon the four skill-level provisions of the regulation and Guidance for setting OES prevailing wages for the H-2B program in favor of the a mean-OES prevailing wage, the agency continued to evaluate and approve private wage surveys using the skill-level definition of prevailing wage, which continued use was challenged in this case.

The Third Circuit found DOL’s “continued approval of skill-level wages submitted based on employer wage surveys is not only adversely affecting the wages of similarly employed United States workers, but the H-2B program as now administered is leading to unjustified disparities between employers who submit private wage surveys and otherwise similarly situated employers who do not submit surveys and who therefore must pay the OES prevailing wage.”  It added that the DOL practice “creates a system that permits employers who can afford private surveys to bring H-2B workers into the country for employment at lower wages than employers who cannot afford such surveys and who therefore must offer the higher OES prevailing wage.”  The Court also found that “when evaluating wage surveys based on skill levels pursuant to the 2009 Wage Guidance, DOL directly contradicts the current prevailing wage definition in 20 C.F.R. § 655.10(b)(2) (2013), … which rejects skill-level considerations.”

Texas Governor Mandates E-Verify for All Texas State Agencies and Businesses Contracting with the State of Texas

AUTHOR:  Maggie Murphy.

Texas Governor Rick Perry started December by issuing an Executive Order requiring E-Verify participation by all Texas state agencies and for all businesses contracting with the State of Texas:  http://governor.state.tx.us/files/press-office/EO-RP-80_E-Verify_IMAGE_12-03-14.pdf

Citing with approval advancements made with the E-Verify system and Texas and other states’ successes with the federal database, the Order requires all state agencies and all businesses providing contract services to the State of Texas to use E-Verify to verify the identity and U.S. work authorization of all employees (including State of Texas employees, contractors and subcontractors) employed during the term of the contract.  The Order requires:

“All agencies under the direction of the governor to verify the employment eligibility of all current and prospective agency employees through the U.S. Department of Homeland Security’s E-Verify system. All agencies under the direction of the governor to include, as a condition of all state contracts for services, a requirement that contractors utilize the U.S. Department of Homeland Security’s E-Verify system to determine the eligibility of:

1. All persons employed during the contract term to perform duties within Texas; and

2. All persons (including subcontractors) assigned by the contractor to perform work pursuant to the contract.”

The Order further states, “Agencies not under the direction of the governor are encouraged to verify the employment eligibility of their current and prospective employees utilizing the E-Verify system and require contractors to utilize the E-Verify system to verify the employment eligibility of their employees and subcontractors.”

This requirement that the State agencies, contractors and subcontractors use E-Verify for “current and prospective” employees is problematic and violates the federal E-Verify regulations.  E-Verify regulations prohibit the use of the database to verify the status of individuals not already hired by the employer. Similarly, the regulations allow only employers subject to certain federal contracts to submit current employees’ data to E-Verify.  Although the Order goes into effect immediately, challenges are expected, because of this problematic language.

E-Verify is a federal database operated and monitored by DHS.  For most employers, new-hire employee information is submitted to the E-Verify system to verify the employee’s identity and work authorization. The database cross-references the Social Security Administration, DHS, and various other agency databases to provide verification or other updates to the employer.

Jackson Lewis P.C.’s Immigration practice group includes attorneys who work with clients on E-Verify compliance issues every day. We have former DHS attorneys on our team and work to assist our clients on various I-9 and E-Verify issues.  On December 4, we teamed with an E-Verify Agent to provide an “Immigration Update” webinar reviewing the new developments in E-Verify:  http://www.jacksonlewis.com/webinars.php



Law Professors’ Letter Advocate that Executive Authority to Extend Deportation Deferrals

AUTHOR:  Nicola Prall.

On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”

Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.

Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential   for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission.  Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.

President Obama’s Executive Action on Immigration under Attack in Federal Court

AUTHOR:  Anya Susarina.

Not two weeks after the President announced his executive action on immigration, 17 states, including Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Mississippi, Montana, Nebraska, North Carolina, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin, led by Texas Attorney General Greg Abbott, are challenging the executive action under the U.S. Constitution’s Take Care Clause (Section 3 of Article 2). The Clause provides, in part, “[the President] shall take care that the laws be faithfully executed.”   The suit asserts the President has gone beyond his powers by effectively creating new law and condemns the Department of Homeland Security (DHS) for not eliciting public comment, which is a standard procedure, before issuing its directive.

At the core of the controversy are two programs for undocumented immigrants – Deferred Action for Childhood Arrivals (“DACA”) and Deferred Action for Parental Accountability (“DAPA”).  DACA allows young people brought to the U.S. as children to live and work in the U.S. without fear of being deported while deferment is in effect.  DAPA does the same for parents whose children are U.S. citizens or permanent residents.  DACA and DAPA are estimated to affect more than four million people.

The U.S. does not have the resources to deport  the nearly 11 million people believed to be in the country unlawfully. The executive plan allows DHS to exercise discretion to prioritize who should be removed based on three priority categories of immigrants: (1) those who pose a threat to national and border security, (2) those with several misdemeanor convictions, and with serious visa status violations, who entered the U.S. unlawfully and cannot establish continuous presence in the country since January 1, 2014, and (3) those who were ordered removed on or after January 1, 2014.

The Office of Legal Counsel (“OLC”), which provides authoritative legal advice to the President and the Executive Branch agencies, concluded that this prioritization does not amount to law making and, therefore, does not represent an overreach since the effect is a flexible system for an exercise of discretion rather than a rigid policy.  In addition, prioritization is consistent with Congress’ 2014 directive to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”

In regard to DAPA, OLC notes deferred action is not new and has been used, for example, in 1997, to grant deferred action status to applicants applying for permanent residence under the Violence Against Women Act (“VAWA”) while they wait for a visa.  Similarly, in 2000 deferred action became available to victims of human trafficking, and certain other crimes, and their family.  In 2005, Hurricane Katrina triggered deferred action covering foreign students who were unable to attend schools and satisfy the student visa requirements.

OLC emphasizes that deferred action is a temporary, discretionary, revocable relief, not a grant of the right to remain in the U.S.

Further, 135 immigration scholars supported the President’s executive action on DACA and DAPA, saying these are legal exercises of prosecutorial discretion.

Jackson Lewis will continue to follow the development of this story.

U.S. Department of Labor Issues Fact Sheet Outlining Review of its PERM Labor Certification Program

AUTHOR:  Robert Neale.

The U.S. Department of Labor has issued a “Fact Sheet” on its plans to initiate a review of its PERM Labor Certification Program and accompanying regulations.  The review is being conducted as part of President Barack Obama’s recent efforts through Executive Action to reform the country’s immigration system.

The DOL noted that it has not conducted any comprehensive review or major modifications to the labor certification requirements and processes since the inception of its on-line PERM program more than 10 years ago.  It pointed out that advances in technology and information dissemination have dramatically changed common industry recruitment practice, and existing regulatory requirements governing the PERM recruitment process may not align with worker or industry needs and practices.

As part of its review, the DOL will seek input from the public on how its current regulations can be modernized to be more responsive to changes in the U.S. labor force.  It stated that it will be seeking input in the following areas:

  1. Options for identifying labor shortages and surpluses and methods for aligning domestic worker recruitment requirements to those shortages and surpluses.
  2. Methods and practices to modernize U.S. worker requirements.
  3. Processes to clarify employer obligations to ensure PERM positions are open to U.S. workers.
  4. Ranges of case processing timeframes and possibilities of introducing a premium processing program.
  5. Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

It likely will be months before the DOL solicits input on these initiatives. Jackson Lewis attorneys will monitor closely any developments. We are prepared to assist employers on the issues these new initiatives may create.  Should you have any questions, please contact the Jackson Lewis attorney with whom you regularly work.

Temporary Protected Status Extended to Liberia, Sierra Leone, and Guinea

AUTHOR:  Sujata Ajmera.

Temporary Protected Status (TPS) has been extended to Liberia, Sierra Leone, and Guinea for a period of 18 months, according to U.S. Department of Homeland Security’s November 20, 2014, announcement.  The designation, prompted by the ongoing spread of the Ebola Virus Disease in these Western African countries, allows foreign nationals from these countries who are currently in the United States to apply for TPS, work authorization, and travel authorization with U.S. Citizenship and Immigration Services (USCIS).  Requests for authorization to travel to one or more of these countries will not be approved, barring extraordinary circumstances.

TPS is designated to foreign nationals from certain countries due to conditions that temporarily prevent the country’s nationals from returning safely or where the country is unable to handle the return of its nationals adequately.  This status is offered to nationals of the designated country who are already present in the United States or to individuals without nationality who last resided in a designated country.  TPS has been granted to individuals in the past because of ongoing armed conflict, environmental disaster, and outbreak of an epidemic, as is the present case.

The TPS designation comes on the heels of the U.S. State Department’s October 22, 2014, decision requiring all travelers from Liberia, Sierra Leone, and Guinea to enter the U.S. through one of five designated airports and undergo an Ebola Virus Disease screening.  The designated airports are New York’s Kennedy, Newark’s Liberty, Washington’s Dulles, Chicago’s O’Hare, and Atlanta’s Hartsfield-Jackson. Passengers scheduled to pass through any other airport must re-route their flights to ensure entry through one of these designated airports.

The Ebola Virus Disease also has prompted many employers to create standard operating procedures for responding to employee concerns and complaints related to possible exposure to the virus at locations inside and outside of the United States.  Please contact your Jackson Lewis attorney for assistance in developing such protocols or to address your concerns regarding the impact of the Ebola Virus on your workplace.

President Obama to Announce Administrative Immigration Reform

AUTHOR:  Robert Neale.

President Obama announced today that he will address the nation on Thursday evening, November 20, 2014, to announce the executive actions he will be taking on immigration reform. A follow up speech is scheduled for Friday in Las Vegas, Nevada, to provide additional details regarding his plan.

Advocates for immigration reform have recommended a series of actions that the President could take without Congressional approval.  Although specific details are not yet known, supporters of the President’s actions have proposed, among other things, the following:

  1. Relief from deportation to undocumented immigrants who are parents of U.S. citizens or of permanent legal residents. It is not yet clear which parents of citizens or permanent residents would be included.
  2. Reducing the current green card backlogs and overall wait time for both employment- and family-based green card categories by not counting the principal immigrant’s derivatives against the annual visa quota.
  3. Refining guidance for which immigrants should be prosecuted and deported if they are apprehended by authorities.
  4. Strengthening enforcement and security along the Southwest border.
  5. Reallocating more than 200,000 immigrant visa quota numbers that went unused during quota years in the late 1990s and early 2000s.
  6. Extending eligibility for adjustment to permanent resident status to certain individuals who have been granted Temporary Protected Status.

President Obama has stated that his actions are in response to Congress’ failure to reach agreement on immigration reform. The Senate approved a proposal last year, but the House has refused to act. Republicans are opposed to President Obama’s likely unilateral actions, with some congressional members threatening to pursue a government shutdown or other measures if President Obama unilaterally acts on immigration through executive order and not through the legislative process.

Jackson Lewis is closely monitoring these new developments regarding the availability of immigration benefits, and will provide any new information as it arises.

I-9 Compliance Requires Consistency: OCAHO Slaps Enhanced $330K Fine on Employer for Repeating Offense

AUTHOR: Maggie Murphy.

Given the employer’s status as a “Second Offender,” the Office of the Chief Administrative Hearing Officer (OCAHO) ordered that a penalty of $329,895, assessed by ICE agents involved in investigating the company’s I-9 practices, be upheld.  In USA v. Durable, Inc., presiding Judge Helen K. Thomas recognized that the employer had incurred 300 I-9 violations in the current investigation, after paying a $30,000 fine in a settlement with the legacy INS in 1989.  Judge Thomas agreed with the government that the penalty should be enhanced because, she states:

The penalties Durable previously paid clearly did not have the desired deterrent effect, inasmuch as Durable apparently did not alter its behavior to conform to the requirements of the law after it entered the settlement agreement.  Perhaps a higher penalty will have a more motivating effect.

This opinion reflects the current trend of ICE and Homeland Security Investigations (HIS) to seek aggressive civil penalties for I-9 investigations and of the OCAHO to evaluate each case squarely on its merits.  As the government uses the E-Verify database more to gather information and data against employers registered (voluntarily or through state mandate or FAR obligations), I-9 and E-Verify compliance protocols and practices are critical for employers.

Organizations that have been the subject of INS, DHS or ICE investigations are under greater scrutiny. Review your current protocols and make sure you review I-9 and E-Verify compliance on a semi-annual basis. Jackson Lewis provides training, webinars, and a comprehensive suite of services to help employers install and maintain I-9 and E-Verify compliance.

Our next free webinar will discuss Immigration Compliance – A Year In Review.  If you are interested in attending this webinar or in learning more about our compliance services, contact one of our Immigration attorneys.

Immigration Reform After Elections?

AUTHOR:  Sean Hanagan.

“It’s time for us to take care of business,” President Barack Obama announced to the press after the elections last week. The administration may take executive action on immigration soon. With most of those races now decided, the President sounded a note of impatience: “I can’t wait another two years,” he said in the briefing. A “broad package of changes” to immigration policy reportedly is under discussion within the White House and at DHS and the President may make his announcement by the end of November.

Changes could include a legalization program for farm workers along the lines of the “AgJOBS” bill, which was considered in Congress but shelved because of concerns over  “amnesty” being offered to the  more than three million unauthorized agricultural workers estimated to be in the United States. A less controversial group of potential beneficiaries may  be unauthorized aliens who are married to U.S. citizens or legal permanent residents. The third group under discussion is parents of the “Dreamer” children, who currently benefit from DACA (Deferred Action for Childhood Arrivals) relief implemented by President Obama in 2012.  Speculation surrounding this last group is fueled by an October DHS draft solicitation seeking a vendor to produce millions of government identification cards.

House Speaker John Boehner criticized the President’s talk of unilateral action, stating, “[The President]‘s going to burn himself,” and indicating “no chance” for comprehensive immigration reform this term unless the President engages with Republicans on bi-partisan legislation. Whether political posturing or genuine cooperation and open debate will determine the fate of immigration reform efforts remains to be seen, but employers should anticipate change that may dramatically affect the pool of legal workers.

Restaurant Wins Specialized Knowledge Visa Fight with DHS

AUTHORS:  Michael Neifach and Minnie Fu.

A federal appeals court in Washington, D.C.,   has rejected U.S. Citizen and Immigration Services’ determination that “inherent knowledge a person gains as a result of his or her upbringing, family and community traditions, and overall assimilation to one’s native culture necessarily falls into the realm of general knowledge” and therefore cannot not considered “specialized knowledge” as required for L-1B, intra-company transfer visa.  In its October 21, 2014 decision, the U.S. Court of Appeals for the District of Columbia Circuit reversed a  district court’s decision granting summary judgment for the government and remanded the case for further proceedings. Fogo De Chao (Holdings) Inc v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014).   

In 2010, Fogo de Chao applied for an L-1B visa on behalf of Rones Gasparetto, a Brazilian churrasqueiro, a restaurant employee who cooks a variety of meats on skewers resting on a support over charcoal embers or wood, in one Brazilian version of this food preparation technique.  Mr. Gasparetto had been employed as a “Churrasqueiro Chef” in Sao Paulo, Brazil since May 1, 2007, and had worked in the same capacity in another of Fogo de Chao’s Brazilian affiliates from June 2006 through February 2007.  He was able to perform the duties of “Churrasqueiro Chef” as a result of both his training with the company and his rural upbringing participating in the churrasco tradition in southern Brazil.  USCIS concluded that the petition that Mr. Gasparetto’s culinary skills, knowledge of his native regional culture, and “authenticity” gained through his life experiences could not, as a matter of law, constitute “specialized knowledge” of the company’s product.  The district court deferred to USCIS’ interpretation of “specialized knowledge under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Fogo De Chao Churrascaria, LLC v. Department of Homeland Security, 959 F. Supp. 2d 32, 44–49 & n.5 (D.D.C. 2013). 

The appellate court, however, concluded that the USCIS determination, which had been issued through a non-precedential decision by the Administrative Appeals Office, was not entitled to deference.  The court reasoned that nothing in the statute precludes culturally acquired knowledge from being taken into account as “specialized knowledge” for L-1B visa consideration.  Similarly, the court found that established USCIS policy and guidance regarding “specialized knowledge” in no way categorically excludes cultural knowledge from this determination.   This decision could broaden the range of professionals eligible for transferee specialized knowledge visas.