An appeals court decision granting six undocumented workers standing to recover wages owed by their employer under the Fair Labor Standards Act (FLSA) will stand after the U.S. Supreme Court declined to review the case on March 14.

The FLSA prescribes standards for minimum wage and overtime pay and provides employees with an avenue to recover earned but unpaid wages. The U.S. Court of Appeals in St. Louis ruled six undocumented workers from Guatemala could pursue a claim under the FLSA for unpaid wages earned while working for Jerusalem Café.  The Eighth Circuit determined that “employee,” as used in the FLSA, includes individuals who are not legally authorized to work in the United States.

The owners of Jerusalem Café argued that because the Immigration Reform and Control Act (IRCA) prohibits the employment of undocumented workers, the plaintiffs  were not legally entitled to the wages they sought to recover, and so lacked standing to make an FLSA claim. Rejecting this argument, the appeals court noted the IRCA specifically requires employers to comply with other federal laws, such as the FLSA.

The Court also rejected Jerusalem Café’s argument that this matter was governed by the U.S. Supreme Court’s decision in  Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). In Hoffman, the plaintiff alleged he was terminated in violation of the National Labor Relations Act (NLRA). He attempted to recover wages he would have been paid had he not been improperly terminated, but the plaintiff had no standing to recover future lost wages to which he was not legally entitled. However, the plaintiffs’ claims in Jerusalem Café were distinguishable because these employees were attempting to recover wages they already earned, for work already completed.

The Eighth Circuit also rejected Jerusalem Café’s argument that granting undocumented workers standing under the FLSA “would encourage successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws and encourage future violations.” It agreed with the plaintiffs that awarding earned but unpaid wages to undocumented immigrants does not create an additional violation of immigration laws. Allowing them to recover legal wages for work already completed, the Eighth Circuit said, simply assures that their employer does not gain an economic advantage by employing undocumented workers without complying with the FLSA.

Left intact is a jury verdict of $284,000 in favor of the six employees. The jury made this award despite the plaintiffs’ open disclosure of their immigration status throughout the trial.

AUTHOR:  Robert Neale.

The U.S. Citizenship and Immigration Services (“USCIS”) will begin accepting new H-1B petitions against the upcoming Fiscal Year 2015 H-1B quota on April 1, 2014.  This year’s H-1B season is expected to be similar to last year’s, during which the 85,000 “cap” on new H-1Bs was reached in the first week petitions were accepted. A total of 124,000 petitions were filed last year. The cap applies to individuals who have never held H-1B status or who previously worked only for an H-1B exempt employer. Employers should plan now for a possible 40-percent-rejection rate on their H-1B petitions.

Alternative visa options for affected employees include the following:

  • For Canadian and Mexican professionals, the TN visa available under the North American Free Trade Agreement.
  • For nationals of Australia, the E-3 visa.
  • For nationals of Chile or Singapore, the H-1B1 visa.
  • For intracompany transferees, the L-1 visa. An organization with foreign operations can transfer employees to its U.S.-affiliated company in a similar position under certain circumstances.
  • For individuals with a U.S. degree in a science, technology, engineering or math (STEM) field and employers enrolled in E-Verify, the 17-month optional practical training (OPT) extension.
  • For individuals who may qualify under the extraordinary ability criteria, the O-1 visa.
  • For essential employees if the company and foreign national share the same nationality, the E-2 visa.
  • For individuals in F-1 status, continue with F-1 studies and look at internship opportunities under curricular practical training (CPT).
  • For individuals who may qualify under the EB-1 extraordinary ability, EB-1 outstanding researcher and/or EB-2 national interest waiver (NIW) criteria, pursue concurrent I-140/485 green card process and work authorization issuance.
  • For individuals whose employers have offices outside the United States, the individuals can be placed on the foreign payroll and work abroad until next year’s H-1B filing period or until another type of work visa becomes available.
  • For individuals entering a structured training program, the H-3 visa.
  • For individuals who can be categorized as an Exchange Visitor, the J-1 visa.

Every situation is different and your legal representative should be consulted to ensure you have an alternative plan should the H-1B petition filed on behalf of a foreign national employee be rejected.

 

Department of Homeland Security Secretary Jeh Johnson has announced that Temporary Protected Status (“TPS”) for eligible Haitians will be extended for an additional 18 months, from July 23, 2014, to January 22, 2016.

Current Haitian TPS beneficiaries must reregister during a 60-day period, from March 3, 2014, to May 2, 2014.  In addition to reregistering, Haitian nationals who wish to have employment authorization must  apply for a new Employment Authorization Document (“EAD”).  The new EADs will be issued with an expiration date of January 22, 2016.

Because of the volume of applications, U.S. Citizenship and Immigration Services (“USCIS”) expects that some applicants will not receive their new EADs prior to the expiration of their current EADs.  Consequently, USCIS has automatically extended current Haitian TPS EADs bearing an expiration date of July 22, 2014, for an additional six months.  This means that employers must treat current EADs as valid until January 22, 2015.  For Form I-9 reverification purposes, employers can accept the current EAD and a copy of the Federal Register Notice announcing the extension of the Haitian TPS.

In order to reregister, qualified Haitian nationals must file Form I-821, Application for Temporary Protected Status, with USCIS.  If they wish to obtain employment authorization, they must also file Form I-765, Application for Employment Authorization.  Additional information on TPS for eligible nationals of Haiti is available at www.uscis.gov/tps.

AUTHOR: Harry J. Joe.

The Office of the Special Counsel (OSC) for Immigration-Related Unfair Employment Practices is warning employers not to use forensic tools or techniques to assess the validity of any document presented for identification and employment authorization, or apply a different level of scrutiny based on the type of document presented by the employee or the citizenship status or national origin of the employee when completing the Form I-9 or in the course of an internal compliance audit of I-9s.

The warning appeared in a general guidance letter, dated December 30, 2013, from Alberto Ruisanchez, Acting Deputy Special Counsel, OSC, Civil Rights Division of the United States Department of Justice, answering an inquiry whether an employer conducting an internal I-9 audit may ask anemployee to produce employment eligibility documentation at the time the Form I-9 was completed where copies of the documentation are “unclear and prevent forensic evaluation of their genuineness.”

OSC stated that voluntary internal audits should not be conducted because of lingering doubts concerning employees’ true citizenship status or national origin, or in retaliation for employees’ exercising their rights under the Unfair Immigration-Related Employment Practices provision of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1324b. Prohibited practices include unfair documentary practices commonly referred to as “document abuse.”

OSC advised employers that the standard for reviewing Form I-9 documentation in an internal audit should be the same as in reviewing documentation during the initial employment eligibility verification process. An employer is required to accept Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting them.

As to the specific question presented by the employer, Mr. Ruisanchez stated that an employer should not request to see I-9 documents originally presented or alternative documents solely because the photocopies that were previously made were unclear or because documents originally presented were not photocopied. Likewise, an employer should not conclude, based solely upon the illegibility of the photocopies that such documentation was not genuine or did not relate to the individual.

 

The Acting Assistant Inspector General for Audits with the DHS Office of the Inspector General, Mark Bell, has made three recommendations for improving ICE’s implementation of its worksite enforcement strategy based on an audit of the agency (www.oig.dhs.gov).  ICE is the DHS agency responsible for implementing the nation’s worksite enforcement strategy and protecting employment opportunities for the nation’s lawful workforce.

One of President Obama’s first acts was to revamp ICE’s worksite enforcement strategy to give priority to identifying employers who knowingly hire illegal workers and to use all available civil and administrative tools to penalize and deter illegal employment.

From fiscal years 2009 through 2012, Congress allocated about $531 million to fund and implement ICE’s worksite enforcement strategy.  Over that same period, ICE conducted 9,140 administrative I-9 inspections, issuing about $31.2 million in civil fines to employers.

The recommendations to ICE are as follows:

#1: Enforce its oversight procedures to ensure consistent application of the worksite enforcement strategy administrative inspection process nationwide.

#2: Develop a process to evaluate the effectiveness of the administrative inspection process and modify the process based on the evaluation.

#3: Direct Homeland Security Investigations field offices to provide consistent, accurate, and timely reporting of information on worksite administrative inspections.

Although Mr. Bell’s audit concluded ICE’s I-9 inspection process met the requirements of the Immigration and Nationality Act, he determined ICE failed to monitor or evaluate adequately the performance or outcomes of the process among its field offices, the Homeland Security Investigations’ headquarters did not adequately oversee the offices to ensure they were consistent in issuing warnings and fines—finding some issued significantly more warnings than fines, and some field offices negotiated fines with employers—significantly reducing the amount—while others did not.

Employers should anticipate that more fines from ICE, instead of warnings.  There also is expected to be less interest in reducing these assessments and more activity in regions that tended to have fewer inspections.   The number of inspections also may increase overall.  ICE likely will redouble efforts in monitoring field office activity, encouraging them to conduct inspections in a more consistent fashion, and encouraging more precision in the internal deliberation supporting the fine assessment.

The Temporary Non-agricultural Employment 2011 H-2B Wage Rule for calculating the prevailing wage rates (“Rule”) has cleared one of the last hurdles to implementation by the U.S. Department of Labor, with a ruling by a federal appeals court in Philadelphia upholding the regulation.  The U.S. Court of Appeals for the Third Circuit held on February 5 that the DOL has authority to make rules regulating the H-2B program, that the Rule was lawfully promulgated and that it did not violate the Administrative Procedure Act or the Immigration and Naturalization Act.  The lawsuit was brought by employer associations that recruit H-2B workers and stand to face higher labor costs as a result of the Rule.  The case is La. Forestry Ass’n v. Sec’y United States DOL, 2014 U.S. App. LEXIS 2167 (3d Cir. Feb. 5, 2014).

The Rule (76 Fed. Reg. 3,452 (Jan. 19, 2011) (codified at 20 C.F.R. § 655.10)) eliminated the “four-tier wage methodology” in favor of the mean Occupational Employment Statistics (OES) wage for each occupational category, and established a wage calculation regime wherein the prevailing wage is the highest of the applicable collective bargaining agreement(s), the rate established under the DBA[???] or Service Contract Act, or the OES mean.  It also barred use of employer-submitted surveys if the prevailing wage can be determined based on OES data or the rates established under the DBA or SCA. According to DOL’s estimates, “the change in the method … will result in a $4.83 increase in the weighted average hourly wage for H-2B workers and similarly employed U.S. workers[,]” and a total annual transfer cost of $847.4 million.

This Third Circuit decision is welcomed by DOL, which has faced numerous court challenges in its efforts to promulgate new H-2B rules since 2008.  The 2011 H-2B Wage Rule was published in response to an August 2010 court order enjoining the agency from implementing its 2008 H-2B wage rule on the ground that it violated the APA, promulgated without seeking public comment.   The court ordered the DOL to promulgate new, APA-compliant rules.

Even though DOL published the 2011 Rule within the time ordered, its implementation has been held up by court action and by Congressional “appropriations concerns” denying DOL funding.  DOL continued to use its 2008 rule.  This was challenged and in March 2013, a federal district court vacated the 2008 wage rule and permanently enjoined the agency form implementing it (see www.globalimmigrationblog.com/2013/03).  The court gave the DOL 30 days to comply.  As a result, DOL and USCIS published a joint interim final rule in April 2013 that established a new methodology for calculating H-2B prevailing wages (see www.globalimmigrationblog.com/2013/04), which DOL indicated would be effective only until the 2011 H-2B Wage Rule took effect.

Since Congress lifted the appropriations ban on the Rule when it enacted the DOL Appropriations Act, 2014 (see Pub. L. 113-76, Div. H, Title I (2014)), we anticipate DOL will now apprise the public of the status of H-2B prevailing wages and the effective date of the Rule by publishing a notice in the Federal Register.

The Third Circuit recognized its decision may lead to  a rift in the courts of appeals.   In Bayou Lawn & Landscape Servs. v. Sec. of Labor, 713 F.3d 1080 (11th Cir. 2013), the Atlanta court affirmed an injunction barring implementation of the interim rule preliminarily, finding DOL had no rulemaking authority over the program.  The Third  Circuit cautioned, however,   that Bayou may not be the last word on the subject from its sister circuit: “The three-member panel in Bayou opined only on whether the District Court abused its discretion…, not on whether the DOL actually has that authority or not….”

For more information on H-2B visas, H-2B labor certification applications, DOL H-2B audits or investigations, please contact your Jackson Lewis attorney or any member of the Jackson Lewis Immigration Practice.

On February 10, 2014, the Department of State finalized its regulation removing the requirement that Mexican citizens submit a TN petition with and obtain an approved TN petition from U.S. Citizenship and Immigration Services (USCIS) when seeking visa classification under the TN visa category.  Under the final rule, Mexican citizens may apply for a TN visa with the U.S. embassy or consulate abroad directly.  The consular officer will determine whether the applicant is eligible and meets the requirements for TN visa classification.  Once the TN visa is approved and issued, the applicant may apply for admission to the United States under TN status.

The North American Free Trade Agreement (NAFTA) allows citizens of Canada and Mexico to be employed in specific occupations in the United States under the TN visa category.  To gain entry as a TN “professional,” Canada and Mexico citizens must meet the requirements for the profession listed in Appendix 1603.D.1 of NAFTA and seek temporary entry to engage in a business activity pursuant to that profession.

In addition, as of January 1, 2014, the government also eliminated a numerical limitation of 5,500 TN visas for Mexican citizens.  The USCIS petition requirement allowed the government to track the numerical limit.

Whispers of potential congressional compromise on the red hot issue of legal and illegal immigration to this country gave renewed hope of a comprehensive solution, although it may take some time.  While the original Senate bill designed to overhaul the nation’s tangled immigration architecture, “Border Security, Economic Opportunity, and Immigration Modernization Act,” or S. 744, was politically doomed by what critics considered to be an amnesty provision for illegal aliens, the Republican House leadership appears poised to endorse a more moderate “legalization” program.  The widely anticipated “Statement of Immigration Principles” from Speaker John Boehner of Ohio and other Republican leaders, expected January 30 (http://news.yahoo.com/us-republicans-mull-immigration-path-week-165142064.html), is not expected to include a path to citizenship, the formulation favored by President Barack Obama, but it may provide a way to legalize some of the estimated 11 million undocumented residents in the United States.  Proponents of such a move, including former Department of Homeland Security Secretary Michael Chertoff, argue that such legalization would allow the undocumented to become more productive members of society and reduce the burden on law enforcement personnel (http://bipartisanpolicy.org/news/press-releases/2014/01/united-states-stronger-position-globally-and-economically-due).

Dovetailing with Michigan Governor Rick Snyder’s request for a special visa program to help revive Detroit (http://news.yahoo.com/michigan-seeks-visas-lure-immigrants-detroit-160502271.html?soc_src=mediacontentstory), and with President Obama’s  State of the Union address, expected to focus on wage equality and how “fixing” immigration will enhance the strength of the U.S. economy (http://www.whitehouse.gov/blog/2013/07/10/economic-benefits-fixing-our-broken-immigration-system), former Secretary of State and co-chair of the Bipartisan Policy Center’s Immigration Task Force, Condoleezza Rice,  has called for  immigration reform  that is “nonpartisan, on behalf of the American people, because it goes to the heart of who we are as Americans.”  If reform happens, provisions for legalization could result in many undocumented employees initiating discussions on the subject with their employers.  While specifics of any program remain to be developed, employers should anticipate requests for support from workers as the discussion over new legislation progresses.

Clothing manufacturer American Apparel reportedly agreed on January 17, 2014, to pay $4.8 million to settle a class action lawsuit filed by its investors. The company’s investors claimed the company suffered substantial financial loss when it disclosed that, in 2009, one-third of its workforce was being terminated as the employees were not authorized to work in the U.S., and its stock price tumbled.  Although the company appeared to be a vocal advocate for U.S. immigration reform, its failure to review carefully the company’s internal immigration compliance policy and procedures had resulted in substantial financial loss.

Not only can a company suffer significant financial losses from private causes of action and government civil penalties and fines, responsible employees also may face severe criminal liabilities. In 2012, Homeland Security Investigations (HSI) of Immigration and Customs Enforcement (ICE) made 520 arrests tied to worksite enforcement investigations.  Of the 520 individuals arrested, 240 were owners, managers, supervisors or human resources employees.  In addition, HSI served more than 3,000 Notices of Inspection and 495 Final Orders, totaling $12,475,575 in administrative fines.    Employers, however, should be wary  of becoming overzealous in their compliance efforts. For example, a large producer of pork products was assessed a $290,400 fine for discrimination  because of I-9 over-documentation issues.  An employer also could be subject to immigration-related discrimination investigations when it fails to implement its hiring practice or I-9 employment eligibility verification process consistently.

The CATO Institute, a public policy research organization, has released results from a series of Freedom-of-Information-Act (FOIA) responses from the Verification Division of US Citizenship and Immigration Services (USCIS) (the agency responsible for managing the E-Verify program) showing that as many as one-third of the TNC (tentative non-confirmation) responses from E-Verify could take at least eight days to resolve.

E-Verify is an Internet-based system that allows employers to determine the work eligibility of employees by verifying employees’ information against Social Security Administration and Department of Homeland Security databases.  An employer transmits Form I-9-related information through a secure computer conduit and will receive either a response that  the employee is “work authorized” or a TNC (tentative non-confirmation).

Employers have been critical of the TNC resolution process.  By contract, a participating employer is prohibited from taking any adverse employment action against the employee during the TNC resolution process.  For some employers, the cost associated with the delay includes training the new employee and providing uniforms.  In addition, the employer-verifier must routinely check with E-Verify to confirm resolution—logging in, checking, logging out, and transmitting follow-up instructions and requests for information to the employee.

The CATO FOIA responses revealed that in 2012, there were 68,775 contested TNCs through E-Verify.  Of those, 21,007 were Social Security Administration follow-ups with an average turnaround of 3.42 business days after the TNC was contested by the employee.  Department of Homeland Security handled the other 47,768 contested TNCs, with an average turnaround of 6.01 business days.  Following are the numbers for FY2008 through FY2012:

 

Number of Days to Resolve

FY

Contested SSA TNC Cases
≤ 1 Day 1 to 2 Days 2 to 3 Days 3 to 8 Days ≥ 8 Days

2008

4,708

1,536

952

2,932

918

2009

3,180

987

577

1,800

748

2010

6,094

2,093

1,261

3,906

1,503

2011

6,274

2,221

1,344

4,503

1,695

2012

7,778

2,791

1,853

6,122

2,463

37.0%

13.3%

8.8%

29.1%

11.7%

FY

Contested DHS TNC Cases
≤ 1 Day 1 to 2 Days 2 to 3 Days 3 to 8 Days ≥ 8 Days

2008

5,284

855

530

1,118

16,924

2009

5,977

828

538

1,128

16,345

2010

11,880

2,053

1,172

2,587

20,936

2011

15,445

3,010

1,762

3,637

21,380

2012

16,246

3,166

1,928

4,224

22,204

34.0%

6.6%

4.0%

8.8%

46.5%

Nearly half of the DHS-related TNCs took longer than eight business days to resolve.  For reporting purposes, eight days is the minimum possible delay for that category—meaning, it could be weeks or months until those TNCs are resolved.

The 68,775 contested TNCs in FY2012 represent about 0.33 percent of the 21.1 million E-Verify queries nationwide.  Extrapolating that rate over the total U.S. active employee population would produce 511,500 contested TNCs—36% of those, or 184,140, projected to take eight days or longer to resolve.