AUTHOR:  Davis Bae.

The U.S. Supreme Court’s decision in United States v. Windsor, No. 12-307 (June 26, 2013), struck down key parts of the Defense of Marriage Act (DOMA), which defined marriage as between a man and a woman for federal government purposes.  As a result, legally married same-sex couples will be entitled to the same federal immigration benefits that are available to heterosexual married couples, including the ability to sponsor a foreign-born spouse for permanent residency and obtain dependent nonimmigrant visa status.
 
Secretary of the Department of Homeland Security Janet Napolitano issued the following statement, “I applaud today’s Supreme Court decision in United States v. Windsor holding that the Defense of Marriage Act (DOMA) is unconstitutional. This discriminatory law denied thousands of legally married same-sex couples many important federal benefits, including immigration benefits.  I am pleased the Court agreed with the Administration’s position that DOMA’s restrictions violate the Constitution. Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws."  Secretary of the Department of State John Kerry made a similar statement regarding the Department of State that oversees visa processing at U.S. Consulates and Embassies worldwide.
 
With the recognition of the legality of same-sex marriage for immigration purposes, thousands of couples and families will now be able to avoid painful periods of separation.  Jackson Lewis is already seeing requests to file for immigration benefits for same-sex couples.  We will continue to monitor the effects of Windsor on employers and individuals nationwide. For other implications of Windsor, please see the following article: U.S. Supreme Court Rules Legally-Married Same-Sex Spouses Entitled to Federal Recognition and Lifts California Ban on Same-Sex Marriages.
 

 Many employers traditionally have relied upon H-2B visa holders to augment their permanent workforce during seasonal and peak-load cycles simply because they cannot find U.S. citizen and Permanent Resident workers to handle the temporary assignments.   The H-2B temporary program generally allows U.S. employers who meet specific regulatory requirements to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

Before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL) by demonstrating that there are no U.S. workers and that the wages will meet the prevailing U.S. wages for the position.  As previously noted on our blog and as a result of at least three court cases, on April 22nd, DHS and DOL temporarily halted processing until such time as they were able to issue a joint interim final rule (immediately effective) that establishes a new methodology for calculating prevailing wages.   DOL resumes issuing prevailing wage determinations, and USCIS resumes adjudicating H-2B visa petitions.  DOL will also now re-determine a “new” prevailing wage and will mail those determinations to employers—even those currently participating in the program.  The “new” wage will be significantly higher than that originally issued—clearly a broken system for employers that must rely upon the H-2B visa holders to get the job done!

It appears the “Gang of 8” in the Senate recognizes the limitations of the existing system.  S.744 contemplates H-2B reform: adding an exemption so that returning workers don’t count against the 66,000 annual cap, among other items.

More importantly, the proposed reform creates a new visa category: the W-visa.   It covers any occupation where typical preparation is less than a four-year university degree (or equivalency).  In other words, a nonimmigrant may now qualify for skilled and unskilled occupations   W-visa status is a “dual intent” classification, meaning, the W-visa holder can also seek permanent residency.

To request a W visa, an employer will register a position with the State Workforce Agency as well as on a new DOL website listing job postings nationwide.  The employer will certify that it is unable to fill the position based upon recruitment results.  Once a position is registered, an employer does not need to do any specific additional recruiting or take any other steps during the three-year registration period to activate the registered slot and hire a W-visa holder.  W-nonimmigrants must obtain status initially by becoming a “certified alien” through a State Department consular post outside of the U.S., but may extend status in the U.S. or renew a W-visa in three-year increments.

The proposed bill will cap visas during the first four years of the program at 20,000, 35,000, 55,000, and 75,000.  W-2 spouses may also be provided work authorization.  After the initial four years, the visa cap will hover—controlled by a congressionally-mandated formula—between 20,000 and 200,000 visas.

Additional allocations may be made for meat trimming, poultry trimming and fish cutting occupations.

More encouraging, employers may utilize the existing processes to petition for their W-visa holders to remain in the United States as immigrants.  The cap will initially set at 56,000 available immigrant visas for these workers.

Employers relying upon the H-2B visa category may rest much easier if the proposed W-visa category is signed into law.

 

 AUTHOR:  Harry J. Joe.

 Immigration and Customs Enforcement’s efforts to obtain enhanced civil penalties against employers for Form I-9 violations has met with resistance from the Justice Department’s Office of the Chief Administrative Hearing Officer (OCAHO) in two rulings issued on March 18, 2013.
 
In the first, United States of America v. Siam Thai Sushi Restaurant, d/b/a Four Siamese Company, Inc., OCAHO Case No. 12A00058, ICE sought aggravated civil penalties by arguing that the employer lacked good faith because the Form I-9s for 18 employees were not completed and produced until four days after a Notice of Inspection had been served on the employer, rather than the three days allowed.. The employer conceded liability for its failure to timely verify the employment eligibility of its employees, although it argued it was unaware of the employment verification requirements and that the proposed enhanced fine would cripple its small business.  
 
While agreeing with ICE that the employer’s failure to timely complete the I-9s were serious violations, the OCAHO Administrative Law Judge (ALJ) disagreed with ICE’s view that the respondent lacked good faith, even though the belatedly produced I-9s contained substantive errors and were incomplete. “[N]either the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith…,” the ALJ  concluded. A failure of compliance based on ignorance of the law is accordingly insufficient to establish bad faith… Absent evidence of culpable conduct that goes beyond the mere failure to comply with the verification requirements there has been no showing that Siam Thai lacked good faith.” ICE’s attempt to impose enhance civil penalties on the basis of lack of good faith was denied.
 
In United States of America v. Seven Elephants Distributing Corp., OCAHO Case No. 12A00031, ICE sought aggravated civil penalties for 33 flawed I-9s in each of which Section 2 was completed improperly and for the employer’s failure to complete an I-9 for another employee (only 7 of the affected 34 employees were found to be unauthorized workers). The ALJ stated that while it was entirely appropriate to enhance a civil penalty based on the undocumented status of an employee, this is true only with respect to the I-9 form for the specific employee who is found to be unauthorized. However, the ALJ said, “It is… inappropriate to aggravate penalties for all the violations across the board based on the presence of some unauthorized individuals in the workforce.” Therefore, enhanced civil penalties were assessed only for the defective I-9s for the seven unauthorized workers, as expressly permitted under 8 U.S.C. 1324a(e)(5).
The Senate’s immigration bill, S. 744, just voted out of the Judiciary Committee and sent for a vote by the full Senate, greatly increases potential penalties for employment verification related violations.   Under S. 744, the civil fine for a first offense of knowingly hiring or continuing to employ an undocumented worker ranges from $3,500 – $7,500, up from current range of $375 – $3,200.  Fines for record-keeping violations increase from the current range of $110 – $1100 per violation to a minimum of $500 for a first offense up to $8,000 per violation for repeat violations.   Moreover,  while S.744 still requires employers complete a Form I-9 for all new hires,  it also mandates use of E-Verify by all employers.  E-Verify, the government’s online web based system that checks I-9 information against Department of Homeland Security (DHS) and Social Security Administration (SSA) databases, is currently used by approximately 450,000 employers, a very small percentage of all U.S. employers, including federal contractors who are required to use E-Verify.   If passed, S.744 will phase in mandatory E-Verify for all employers as follows :  1. Critical infrastructure related industries will be required to enroll not later than 90 days from enactment; 2. Employers with more than 5,000 employees not later than  2 years after issuance of regulations; 3. Employers with more than 500 employees not later than 3 years of issuance of regulations; 4. All other employers, including agricultural employers, not later than 4 years after issuance of regulations.  Importantly, violations of the mandatory E-Verify provisions would be treated as recordkeeping violations, subject to the significant and enhanced civil violations.  S. 744 also significantly changes the process to challenge E-Verify non-confirmations, the documentary requirements for verification, and also expands the authority of the Office of Special Counsel to investigate potential discrimination during the employment verification process.

AUTHOR:  Robert Neale.

As the comprehensive immigration reform bill moves from the U.S. Senate’s Judiciary Committee to a full Senate floor debate, the U.S. House of Representatives is expected to introduce its own version of a comprehensive immigration reform bill soon. Unlike the Senate bill, no details of the possible House bill have been released, and different groups within the House reportedly are working on their own versions.  One bipartisan working group’s bill is expected to contain a 15-year path to citizenship, an E-Verify system that is roughly analogous to the one in the Senate bill, and a pair of guest worker plans that will be sorted out at a later point. That group has been working on a bill since the beginning of the Obama presidency, and took up the issue with renewed vigor after November’s elections.  Another working group within the House is strongly opposed to any path to citizenship.  Any proposed bill must pass through the House Judiciary Committee prior to reaching the floor of the House.  We expected that the immigration reform process will play out well into the summer.  Jackson Lewis will continue to monitor all legislative activities and keep you informed on comprehensive immigration reform.

Following five days of hearings over three weeks and consideration of 300 amendments, the Senate Judiciary Committee on May 21, 2013, passed the immigration reform bill in a bipartisan 13-5 vote. Three Republican Senators, including Senators Lindsey Graham (SC) and Jeff Flake (AZ) who helped draft the original bill, joined ten Democratic Senators to approve the bill. Senate Majority Leader Harry Reid (D-NV) has indicated that the bill will be debated on the Senate floor in early June.

The centerpiece of the legislation, providing a 13-year path to citizenship for the approximately 11 million undocumented aliens emerged intact. Another provision that will be voted on by the full Senate is raising the number of H-1B specialty occupation visas from 85,000 to 110,000 annually (an increase to 180,000 is possible). In a move praised by the technology industry, the Committee dropped a related provision that would have required U.S. companies to test the labor market and search for an “equally qualified” U.S. worker before sponsoring an H-1B worker.

We will continue to monitor the upcoming congressional debate and keep you informed on any changes and revisions to the bill. A summary of the original bill is available at http://www.jacksonlewis.com/resources.php?NewsID=4447.

In a departure from prior interpretations of H-1B sponsorship, a New York state court ruled an H-1B work visa application established an employment contract sufficient to support the employee’s breach of contract claim. Kausal v. Educational Products Information Exchange Institute, d/b/a EPIE Institute, 2013 N.Y. App. Div. LEXIS 2491 (NY Apr. 17, 2013).

Nikhil Kausal, a citizen of India, sued the employer for breach of contract and violation of the payment of wages requirement (Article 6) of the New York State Labor Code. The trial court rejected the plaintiff’s contention that the H-1B visa petition submitted by the employer to the Immigration and Naturalization Services is sufficient evidence of the formation of a contract between the plaintiff and the employer. The plaintiff appealed.

The appellate court, finding an enforceable contract, reversed the judgment. The appeals court said, “The plaintiff established the existence of an enforceable written employment agreement between himself and the defendant through the visa application executed by [the employer’s project manager], on behalf of the defendant, under oath.” The appeals court then found the plaintiff established the required elements of a cause of action to recover damages for breach of contract.

It is noteworthy that the contract violations found against EPIE also were violations of the Department of Labor wage requirements under the H-1B program since EPIE failed to pay the wages stated on the Labor Condition Application.  This factor may have steered the court to its decision, which is inconsistent with prior rulings throughout the county.  Unless the decision is challenged, employers in New York State who sponsor H-1B workers should be cautious about the terms stated on the H-1B petition. 

Employers also are reminded that when an H-1B visa holder is being terminated, the employer must send a letter notifying USCIS of the termination and request the withdrawal of the petition.  The terminated worker must be notified of the termination in writing and provided with a return ticket to the home country or its cash equivalent.  The employer may also withdraw the certified labor condition application submitted on behalf of the terminated worker.  The employer should keep evidence of bona fide termination and notifications sent to USCIS and the employee in the employee’s file. 

Trial court decision
http://www.courts.state.ny.us/Reporter/pdfs/2011/2011_31001.pdf
 
Appellate court decision
http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2013/D37982.pdf

As reported previously, CBP is eliminating the Form I-94, Arrival / Departure Record, the familiar white card that foreign nationals are asked to complete on the airplane prior to entering the United States. Beginning April 30, 2013, if a foreign national needs a copy of the I-94 card as evidence of his or her entry into the United States, he or she will need to go to www.cbp.gov/I94 and print his or her I-94 record. While this is not mandatory, we recommend that foreign national employees, especially those in the United States on temporary work permission, do so. The I-94 card, in conjunction with a foreign national employee’s visa and foreign passport, often is the “List A” document that confirms the foreign national’s ability to work in the United States. Having proof of this authorization is critical. Foreign national entering at airports and seaports that have eliminated the I-94 should log onto the CBP website after entry and check that all information is accurate and correct, particularly:

  • spelling of names,
  • personal information,
  • visa category, and
  • expiration date.

If errors are found, the foreign national should contact CBP.

The I-94 Automation Implementation Schedule begins on April 30, 2013, with Charlotte Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, and Miami International Airport. These locations are followed one week later, on May 7, 2013, by the airports and seaports in New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans and Houston. On May 14, 2013, the airports and seaports with Pre-Clearance, San Francisco (including Hawaii and Guam), Tucson, El Paso, Seattle, Portland (including Alaska), Los Angeles San Diego, and Laredo, will follow. All remaining airports and seaports will eliminate the Form I-94 on May 21, 2013.

The Department of Homeland Security and the Department of Labor have issued a joint interim final rule that establishes a new methodology for calculating prevailing wages under the H-2B low-skilled, nonagricultural guestworker program. This is in response to a March 21 district court decision, in Comité de Apoyo a los Trabajadores Agricolas v. Solis, vacating a portion of the DOL 2008 H-2B Wage Rule (see Federal Court Vacates 2008 H-2B Wage Rule).

The interim rule also responds to another court’s ruling that DOL does not have any authority over the H-2B program. The rule clarifies that DHS is the Executive Branch department charged with making determinations regarding eligibility for H-2B classification and that it consults with DOL about matters with which DOL has expertise, such as the methodology for setting the H-2B prevailing wage.

The agencies stated, “Notwithstanding the Eleventh Circuit’s decision in Bayou, or the Departments’ joint issuance of this interim rule, DOL and DHS continue to maintain, as the Louisiana Forestry Association court held, that DOL does have independent legislative rulemaking authority for the H-2B program…. However, due to these inconsistent court rulings on DOL’s authority to issue independent legislative rules, DOL and DHS are issuing this joint regulation revising the prevailing wage methodology in the H-2B program in order to respond to the court order in CATA v. Solis, and also to dispel questions regarding the respective roles of the two agencies and the validity of DOL’s regulations as an appropriate way to implement the consultation specified in section 214(c)(1) of the INA.”

Under the interim rule, DOL will not use the four-level approach, which was vacated by the court, in its prevailing wage methodology.  The agencies stated, “The prevailing wage will no longer be the mean of the particular wage level, but will be the overall mean of all persons in the occupation in question.”

Key features of the rule:

(i) DOL will use either the Occupational Employment Statistics (OES) wage survey, collective bargaining agreements, the Davis-Bacon Act, the Service Contract Act, or employer-provided surveys, depending on the circumstances, to determine H-2B prevailing wages;
(ii) The prevailing wage will be based on the arithmetic mean wage listed in the OES survey for all persons in the occupation in question;
(iii) DOL will use the prevailing wage set by an applicable collective bargaining agreement where that agreement was reached after arms’ length negotiations between the union and the employer;
(iv) The interim rule permits employers to use the Davis Bacon Act (DBA) or Service Contract Act (SCA) prevailing wage rate, if applicable, and an employer may offer a higher DBA or SCA rate if it chooses to do so; and
(v) Employers may present their own wage surveys, as in the 2008 wage rule, if they provide specific information about the survey methodology so DOL can determine the data accuracy and validity of the methodology and the data are collected within 24 months of the date of submission.

With the publication of the interim rule, DOL has resumed issuing prevailing wage determinations, and USCIS has also resumed adjudicating H-2B visa petitions.

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.

AUTHOR: Melina V. Villalobos.
 
As we previously blogged about on April 17th, a comprehensive immigration reform bill has been introduced in the U.S. Senate, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.  While many critics have focused on the new pathways for legal migration to the U.S. contained in the 850-page bill, the new bill contains some powerful enforcement provisions that employers need to keep at the forefront of their minds.
 
One such enforcement provision deals with E-Verify.  E-Verify is an internet-based system sponsored by the Department of Homeland Security that allows businesses to determine the eligibility of their employees to work in the United States.  E-Verify is seen as a tool to ensure that employers employ a legal workforce as well as provide a disincentive to individuals who seek to work illegally in this country.  E-Verify currently is mandatory only in a handful of states; however, the new legislation would make E-Verify mandatory for all employers across the nation.  The phase-in period, ranging from 90 days to four years, would vary according to the company’s number of employees.

In addition, the bill includes language indicating that employers will be presumed to have knowingly hired an unauthorized worker if they do not verify the individual’s work authorization via E-Verify after their mandatory enrollment date. The new bill would permit employers to utilize a three-day grace period for re-verifying the work authorization of employees with expired work authorization.  It also calls for the Social Security Administration (SSA) to create tamper-resistant Social Security Cards to combat document fraud.  Lastly, the new legislation provides for enhanced photo-matching tools to close-up loopholes that have allowed employees to circumvent E-Verify through identity-theft and ID-borrowing.

Jackson Lewis will continue to monitor developments surrounding comprehensive immigration reform and provide additional updates about issue-specific proposals as we continue to assess the proposed changes contemplated by this bill.