Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

Author : Sujata Ajmera

The American Enterprise Institute (AEI) and The Partnership For A New American Economy have released a study that found that immigrants boost employment for U.S. natives. The purpose and goal of the study, by Madeline Zavodny and entitled “Immigration and American Jobs,” was to explore the effect foreign-born employees have on the overall U.S. job market and to identify ways in which immigration policy and reform can affect innovation and job growth in the United States. Using data from the U.S. Census Bureau and other sources, the study concludes that immigration policy can and should be a significant component of America’s economic recovery.

The study found that immigrants with advanced degrees, specifically, in science, technology, engineering, and mathematics (STEM), boost employment for U.S. natives. In fact, between 2000 and 2007, employment of an additional 100 foreign-born workers in STEM fields with advanced degrees from U.S. universities was associated with an increase of 262 jobs for U.S. natives.

Additionally, according to the study, temporary foreign workers, both skilled and less skilled, also boosted U.S. employment over the same period. Adding 100 H-1B skilled workers to the U.S. workforce resulted in an additional 183 jobs among U.S. natives. Even more notable was that adding 100 H-2B (less-skilled) workers to the overall workforce resulted in an additional 464 jobs for U.S. natives; an impressive statistic that seems to counter the mainstream perception that less-skilled immigrant workers have a negative impact on the U.S. job market and “steal” jobs from U.S. workers.

To illustrate this in a real-world context, the study provides the following example: If an employer is able to hire more foreign-born roofers, American contractor can ultimately build more houses and hire more U.S. workers. This can include U.S. workers in both skilled and less-skilled positions, such as workers for the “front office” and “foremen” to supervise workers.

The study found no evidence that foreign-born workers, in the aggregate, hurt U.S. employment. The empirical data demonstrated that immigration policy actually was a growth factor for the U.S. economy. Therefore, the study suggests, policy reform should be a significant component of America’s economic recovery.

While the most recent bi-partisan federal legislative effort to enact immigration policy reform appears to be stalled in committee, studies like this may yet restart the movement for comprehensive reform by correcting perceptions and identifying the positive benefits the right legislation can have on the U.S. job market.

Jackson Lewis will continue to monitor both state and federal legislative activity and will keep you updated on policy changes that may impact employers and their foreign national workers.

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The U.S. Supreme Court has agreed to hear the U.S. Department of Justice’s challenge to Arizona’s Support Our Law Enforcement and Safe Neighborhoods Act (“S.B. 1070”). Last year, the DOJ filed a lawsuit challenging several of the Act’s provisions on federal preemption grounds, arguing the federal government has exclusive authority to address immigrations issues and policy. A federal district court in Phoenix blocked enforcement of the Act’s most controversial provisions days before they were scheduled to go into effect. On April 11, the Ninth Circuit Court of Appeals sided with the DOJ, affirming the lower court’s decision.

The case could be heard by the Supreme Court as early as April of 2012. Only eight of the justices will hear the case, Justice Elena Kagan recused herself because she was the Solicitor General involved with the Obama Administration’s initial legal opposition to S.B. 1070. Therefore, if the Court splits 4-4 on the legal challenge, the provisions will not take effect. Such a the decision, however, will not settle the larger constitutional issues at stake in the case. Since the Arizona statute was enacted, at least four other states (Georgia, Alabama, Utah, and South Carolina) have enacted similar legislation, which are currently facing challenges in the lower courts.

This will be the second case challenging an Arizona immigration statute to go up to the Supreme Court in as many years. In May 2011, the U.S. Supreme Court, upholding the statute, rejected arguments that Arizona’s Legal Arizona Workers Act (“LAWA”) was preempted by federal law and would lead to discrimination by employers. LAWA imposes sanctions on employers that knowingly or intentionally hire unauthorized workers, as well as requires employers to participate in the federal E-Verify program. In the months since the Supreme Court’s decision, there has been an increase in the number of LAWA investigations by law enforcement officials. That trend is expected to continue.

We will continue to monitor these legal developments. Jackson Lewis attorneys are available to answer any questions concerning compliance with the growing number of state immigration statutes.

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Employers navigating the I-9 employment eligibility verification process for new hires are confronted with a gauntlet of confusing rules, standards, and exceptions to the rules that some have opined are deliberately designed to make the innocuous looking one-page form a magnet for errors. Such cynics cite the year-over-year increases in civil fines being levied by ICE on employers through the continuing national workplace audit campaign the agency is prosecuting as proof of a fatally flawed system.

While the social security number is an optional field on the form according to the latest M-274 Handbook for Employers, the forms will be considered deficient and employers may be subject to fines based on a variety of issues which may appear to be “harmless error” from a common sense perspective, including among others: missing date, signature on the wrong line, notation to “see attached” copies of identification, correct ID data listed in under the wrong list, etc. Employers who have been through the experience of an I-9 audit have become sensitive to the precision required in completing the forms fully, and ICE’s audit and public relations campaigns have conditioned employers to err on the side of completeness in this arena for fear of being heavily fined.

Unfortunately, rules governing I-9 form practice and fines do not focus exclusively on the issue of incompleteness. Employers who fail to walk the legal tightrope of “just enough, but not too much” risk incurring the wrath of the Department of Justice’s Civil Rights Division Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). The DOJ has announced that a public employer has been sued for alleged Immigration–Related Employment Discrimination for too zealously checking the work authorization of foreign employees. The employer allegedly discriminated by dictating what documents a foreign employee must present at hire, contrary to the I-9 rule which mandates that the employee be given a choice of what to present. Similarly, lawful permanent residents were allegedly required to bring in updated work authorization documents when their current “green card” documents expired or they would risk termination, contrary to I-9 work authorization re-verification rules.

The bottom line for employers is that in their management of I-9 employment eligibility verification, keeping the “Goldilocks principle” in mind and treating all employees the same regardless of their citizenship or national origin is key to avoiding liability with either ICE on the one hand, or OSC on the other hand.

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The Department of Labor’s Employment and Training Administration has issued a final rule delaying the effective date of a new H-2B wage calculation regulation.

Throughout 2011, the DOL and the Small Business Association (among other interested groups) have been at odds over the proposed change to the way prevailing wages are calculated for H-2B workers.

Rather than use the traditional wage calculation (from a market survey), the proposal calls for employers to pay H-2B (and U.S. workers recruited in connection with a temporary labor certification application) a “wage that meets or exceeds the highest of the following: the prevailing (market) wage, the federal minimum wage, the state minimum wage or the local minimum wage.”

Thus, as successfully argued by challengers of the proposed rule, DOL would be artificially inflating the prevailing wage assessments by relying upon the federal minimum wage (which is usually higher) for most temporary jobs. The determinations being made by DOL at the end of this year have been onerously high—such that the H-2B program was no longer economically viable.

Most employers would prefer to rely upon the market wage rather than the wage rate established under the Davis-Bacon Act or the Service Contract Act for the occupation in the area of intended employment,

Mounting political pressure from the agricultural, hospitality, travel, and landscape-maintenance industries, among others, has prompted President Barack Obama to include a prohibition to the Government’s provision of funding to the DOL to administer the proposed rule in the continuing appropriation resolution.

Bottom line: it appears that the business community was able to sway the White House to help prevent the DOL from effectively shutting down the H-2B program. At the DOL’s artificially inflated wage rates, an employer would be hard pressed to find a way to make the program work. When competitors are able to pay the lower market wage for employees, it makes no sense for an employer to apply for an H-2B certification, at a much higher wage.

For now, the H-2B guestworker program is still viable for employers looking to fill peakload or seasonal positions with foreign workers. But it’s only a matter of time before DOL takes another crack at shutting-down the H-2B process.
 

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