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.

Due to high demand, businesses must be ready to file their completed H-1B petitions on April 1. The Immigration and Nationality Act (INA) allocates 65,000 new H-1B visas each fiscal year, running October 1 – September 30.  20,000 more H-1Bs are reserved for individuals who received a master’s degree or higher from a U.S. educational institution.  Because a petition cannot be filed more than six months prior to the employee’s start date, the earliest possible date to file for a new H-1B is April 1.

Once the annual limits are reached, an individual cannot receive an H-1B (unless cap-exempt) until the next fiscal year.  Petitions can far outnumber the visas available.  In FY2008 and FY2009, the U.S. Citizenship and Immigration Service (USCIS) accepted petitions for a number of days at the beginning of those fiscal years, then held a lottery to determine how many would be retained for adjudication.  Thousands of qualified H1B candidates were turned away.

In FY2010, FY2011 and FY2012 the demand relaxed a bit, and USCIS was able to accept petitions into November, December and January.  However, in FY2013, USCIS announced that the quota had been met on June 11.  Last year, the FY2014 quota was met on April 5.

There is a high probability that FY2015 H-1B available visa numbers will be gone quickly, as well.  This can seriously affect an employee who will not have work authorization without changing status to H-1B.   It is a good time to review your employee roster and identify which individuals will need an H-1B visa.    The immigration team at Jackson Lewis can help make sure you have the best chance at obtaining H1B visas for your employees.

A recent unpublished Board of Immigration Appeals (BIA) decision has revived the discussion of whether spouses of E visa holders are required to apply for separate employment authorization in order to work lawfully in the United States.  Immigration lawyers have long debated whether the Immigration and Nationality Act (INA) and its regulations provide automatic work authorization to E-2 and L-2 spouses; or, if despite the language of the Act, Citizenship and Immigration Services (CIS) is correct in requiring that a separate application for employment authorization be approved in order for these individuals to be able to start working in the U.S.

The foreign national, the spouse of an E visa holder, in In the Matter of Do Kyung Lee, et al., was engaged in employment without an approved application for employment authorization.  The Immigration Judge denied her the opportunity to adjust her status to that of a lawful permanent resident, ruling that she engaged in unauthorized employment during her time as an E-2 spouse.

The foreign national appealed the Immigration Judge’s decision, arguing before the BIA that “nothing in the [INA] or regulations sets forth an application procedure or work authorization application requirement for E-2 spouses.”  The BIA agreed and confirmed that the law, in fact, states that E-2 spouses “shall” be authorized to engage in employment and it does not include a requirement that E-2 and L-2 spouses apply separately for approval of work authorization.

This decision suggests that E-2 and L-2 spouses can work lawfully “incident to status” and avoid spending the time and money involved in applying for separate employment authorization.  However, CIS has not made any policy changes as a result of this BIA decision, so an E-2 or L-2 spouse who chooses not to apply for employment authorization, or begins working prior to work authorization approval, is still at risk of being designated by CIS or an Immigration Judge as having worked without authorization.

Our attorneys will continue to monitor CIS policy on the issue.

The U.S. Citizenship and Immigration Services (USCIS) has issued new memoranda of understanding (MOUs) for E-Verify browser users and Web Services users and developers. The MOUs set out responsibilities for the user and the government regarding the online employment eligibility database. The MOUs became effective for new users on December 8, 2013, and will become effective for existing users on January 8, 2014.

USCIS states that the new MOUs do not change the E-Verify enrollment process.  Existing E-Verify users do not need to execute a new MOU, but they are bound by the enhancements.  USCIS notes that many of the changes are structural, including new titles and sections.  The revised MOUs also include enhanced privacy protections and instructions for reporting privacy and security breaches.  E-Verify Employers and E-Verify Employer Agents are strongly encouraged to review the revised MOUs closely.

 

The National Prevailing Wage Center (NPWC) has acknowledged that the October 2013 government shutdown and the significant increase in wage survey-based prevailing wage requests from H-2B employers has delayed processing of Prevailing Wage Determination requests. These undue delays by the Department of Labor (DOL) and NPWC in adjudicating cases are prohibiting employers from filing their temporary labor certification applications in a timely manner.

The increase in wage survey-based prevailing wage requests is a direct result of the joint interim regulations that mandate a mean Occupational Employment Statistics (OES) wage be used for all H-2B cases, regardless of the complexity of the position at issue. In most cases, the mean wage is the equivalent of a Level 3 OES wage, which is usually prohibitively high for employers. It would price them out of their respective markets and impact their ability to get contracts and retain existing customers. As a result, many employers are choosing to use privately obtained wage surveys that reflect wages in a particular market or industry much more accurately; hence the increase in private wage survey-based prevailing wage determination submissions to the DOL/NPWC for H-2B cases.

While it can be argued that the DOL/NPWC should have foreseen this increase in wage survey submissions, it appears that the DOL and NPWC did not. In an attempt to alleviate their burden, they are now allowing employers to change their pending wage survey-based requests to regular prevailing wage requests, which would result in a faster determination and an OES median wage assignment. However, the possibility of receiving a quick wage determination will not be incentive enough for many employers to agree to a prohibitively higher wage for seasonal workers. Accordingly, we do not anticipate this will speed up the processing of prevailing wage determinations in a meaningful way.

Employers that want to continue utilizing the H-2B program will need to begin the process as early as possible to account for the delays in wage determinations. Our attorneys are monitoring this issue and working with clients to accommodate delays and obtain timely H-2B certifications for their seasonal needs.

In a significant decision likely to have a major impact on H-2B employers, the Department of Labor’s (DOL) Board of Alien Labor Certification (BALCA) has rejected the DOL’s attempt to apply supplemental prevailing wage determinations (PWDs) retroactively upon employers who use H-2B temporary foreign labor.  The action came in an Appeals Board Decision rendered on December 3.

The Immigration Act permits H-2B foreign workers to enter into the United States on a temporary basis to perform temporary, nonagricultural services or labor when recruitment efforts have failed to identify ready, willing, and able United States citizens or other work-authorized foreign nationals.  The process of applying for the opportunity to petition for the admission of these workers begins with an employer’s request for a prevailing wage determination from the Department of Labor.

Back in 2005, the Department of Labor issued guidance applying a 4-tier skills-based methodology to calculate prevailing wage rates in permanent labor certification and H-1b/H-2b contexts.  The Department adopted the methodology and promulgated regulations in 2008.

In 2009, a group of plaintiffs filed an action against DOL in the US District Court for the Eastern District of Pennsylvania.  The plaintiffs challenged the tier system methodology under the Administrative Procedure Act.  In August 30, 2010, the Court agreed with the plaintiffs, and found that the DOL failed to articulate a satisfactory explanation to support the use of skill levels in determining prevailing wage rates for positions to be filled by H-2B workers.  The Court ordered DOL to promulgate a replacement rule.  Even though DOL published a new final H-2B Wage Rule on January 19, 2011 (now known as the 2011 Wage Rule), its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding. Therefore, the 2011 Wage Rule never went into effect.  So, DOL continued to rely on its 2008 methodology.  Again, that reliance was challenged, and again the Court agreed with the plaintiffs.  In its order issued in March 2013 (Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013), the Court deleted reference to the 4-tier skill level and concluded that the 2008 Wage Rule “…artificially lower wages to a point that they no longer represent market-based wages for the occupation” and “have a depressive effect on the wages of United States workers…”  As a result, DOL in conjunction with the Department of Homeland Security promulgated an “interim immediately effective regulation” guiding the agency to a conclusion that it would issue decisions at a median tier—thus resulting in what most employers would likely identify as an inflated wage.

Most distressing, the interim regulation applied the “new” supplemental wage determinations retroactively.

Employers using temporary foreign workers were faced with the prospect that they not only would need to pay what in their opinion was an “inflated” wage, but grapple with the  recommendation from DOL that they also provide “back pay” at the same higher rate.  Clearly, for employers relying upon large numbers of temporary workers, as in the food processing, landscaping, and resort hospitality industries, labor costs would be significantly increased.  Most—if not all of the participating employers—might have reconsidered participating in the program and elected NOT to participate had they known of the “new” wage.

BALCA’s decision this week clarifies that the supplemental wage determinations would NOT apply—either moving forward or in the past.  BALCA concluded that the DOL’s H-2b regulations do not require an employer to increase the wage it offers and pays its H-2b workers more than was previously approved.  BALCA ruled that “Because the Department’s regulations do not require an employer to comply with a prevailing wage determination issued after the Department has approved and granted the employer’s Application for Temporary Employment Certification (ETA Form 9142), we VACATE the supplemental PWDs and the increased wage obligations that they purport to impose.”  In the instant case, DOL had issued the employer a supplemental PWD increasing the applicable wage for housekeepers from $9.91 per hour to $13.00 per hour.  BALCA ruled that the employer may ignore the supplemental PWD and continue to pay its temporary workers the $9.91 rate assessed in the initial PWD.

Clients interested in temporary foreign employees or who have been audited by DOL for backwages based on the inflated supplemental PWDs should contact their JL immigration attorneys for advice.

In the latest in a series of decisions addressing the proper allocation of travel and immigration fee expenses between employers and employees utilizing the H2A agricultural guestworker program, the Court of Appeals for the Ninth Circuit ruled an employer must reimburse an H2A worker for the employee’s travel and immigration expenses in the initial week of employment.  For complete details, please visit the Jackson Lewis Wage and Hour Law Update.

The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of November 8, 2013, the agency receipted applications for 9,078 beneficiaries toward the 33,000 H-2B cap amount for the first half of FY2014.  This count includes 7,478 approved and 1,600 pending beneficiaries.

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.  Before requesting H-2B classification from USCIS, the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

The cap (numerical limit) for H-2B visas is set by Congress at 66,000 per fiscal year.  The number is divided equally: 33,000 to be allocated for employment beginning in the first half of the fiscal year (October 1 – March 31) and the remaining 33,000 to be allocated for employment beginning in the second half (April 1 – September 30).  Any unused numbers from the first half of the fiscal year are rolled over for use during the second half.  However, there is no carryover of unused H-2B numbers from one fiscal year to the next.

Employers are therefore reminded to file H-2B petitions before the H-2B cap for the first half of the fiscal year is reached.  Current holders of H-2B visas are not affected by the cap. USCIS will continue to process petitions to:

  • Extend the stay of current H-2B holders
  • Hire roe processors, fish roe technicians and/or supervisors of fish roe processing
  • Hire H-2B workers in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam (provision will sunset on December 31, 2014)

Employers should also initiate the labor application process for the second half of 2014.  While they cannot file until at least 120 days before the date of need, presumably April 1, 2014, they can request DOL prevailing wage determinations at this time.  The entire H-2B application process is as follows:

  1. Obtain a prevailing wage determination from the DOL.
  2. Begin the pre-filing recruitment no more than 120 days before the employer’s date of need.
  3. Prepare a recruitment report once the pre-filing recruitment process is completed.
  4. File the labor application with DOL on Form ETA 9142.
  5. Upon receiving DOL labor certification, file I-129 petition with USCIS.  Standard processing time is approximately two months, although 15-day expedited service is available at an additional fee.  Current USCIS regulations permit the filing of a petition for unnamed beneficiaries.
  6. Once USCIS approves the H-2B petition, workers outside the U.S. must apply for a visa at a U.S. Embassy/Consulate before traveling to the U.S. to begin work.  Employers  may recruit workers only from designated countries.  On the other hand, workers already present in the U.S. must be identified on the I-129 petition filed with USCIS.

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.

The Colorado Division of Labor is conducting more than a thousand audits on employers each year to enforce Colorado’s Employment Verification Law. The Division has conducted approximately 200 complaint-based audits, 5,400 random audits, and 650 re-audits (more than 6,000 audits total) of employers with employees in Colorado since the Law went into effect on January 1, 2007. It has levied over $500,000 in fines and fined more than 160 individual employers.

The Law, Section 8-2-122, C.R.S., applies to public and private employers who transact business in Colorado and to employees hired on or after January 1, 2007. It is comprised of two main components:

  • Each employer in Colorado must make an affirmation on the Colorado Affirmation of Legal Work Status Form (rev. 9/06/12) within 20 days after hiring a new employee. The Form instructs that employers must “keep a written or electronic copy of the affirmation … for the term of employment of each employee.”
  • The employer must keep a written or electronic copy of the employee’s documents required by the federal I-9 law (8 U.S.C. Sec. 1324a), which include identity and employment authorization documents.

The Division has been conducting between 1,000 and 2,000 new audits every year. The majority of the targets are randomly selected. Once audited, companies are likely to be re-audited and the Division takes a harsh stance on violations occurring after the first audit.

If you would like information, assistance or advice regarding the Colorado Affirmation of Legal Work Status Form or other workplace requirements, please contact the Jackson Lewis attorney with whom you regularly work.