On March 14, 2013, a member of the American Health Care Association (AHCA) testified before the House Education and Workforce Committee’s subcommittee on Workforce Protections hearing on the critical shortages of mid-level caregivers in the nation’s skilled nursing centers and its impact on the economy.  The hearing was held to examine the role of lower-skilled guest worker programs in the economy.  Representatives of the Essential Worker Immigration Coalition, the hotel industry, and the Southern Poverty Law Center also testified before the Subcommittee.  Health care employers have identified immigration reform and access to foreign workers as a critical issue for the industry.

Fred Benjamin, Chairman of the Kansas Health Care Association and COO of Medicalodges, Inc., a Kansas nursing home operator, represented AHCA.  Benjamin identified labor shortage as AHCA’s most pressing operating problem.  He stated, “The labor shortage deprives us of the most valuable resource we have, our caregivers. If we are to meet the expectations set for us, policymakers must act now to expand access to new pools of staff and take steps to encourage employment in long term care.”  In a recent study on the vacancy rate for nursing staff, AHCA found that there were approximately 60,000 vacant direct care staff positions as of 2010 — shortages that could worsen as nurses who retire and leave the profession are not replaced.  Another study by the U.S. Department of Health & Human Services (HHS) and the Department of Labor (DOL) estimates between 5.7 million and 6.5 million nurses, nurse aides, home health, and personal care workers will be needed in the coming years to care for the 27 million Americans who will require long-term care by 2050.  Finally, the Health Resources and Services Administration (HRSA) projects that, absent aggressive intervention, the supply of nurses in America will fall 36 percent (more than 1 million nurses) below requirements by the year 2020.

Benjamin testified that among the solutions Congress should consider to address the shortage is to “…increase staff supply, and there are many talented immigrants who are anxious to enter the caregiving field, yet are faced with insurmountable roadblocks. These talented caregivers should be given the opportunity to make a living and make a difference in their own lives and the lives of others. To increase the supply of labor, please give special consideration to permitting new entry for immigrants with nursing skills as well as increasing the pool of unskilled labor. We need a new immigration system that serves the economic needs of the U.S. economy.”  Members of the House subcommittee expressed the need to protect jobs for U.S. workers when designing any new low-skilled foreign guest worker program as part of a comprehensive immigration reform bill.

AHCA had earlier outlined its core principles for immigration reform as follows:

  1. Letting business and industry play a leading role to help drive solutions with Congress.  Any visa program must give employers, not the government, primary say in which workers (and how many) they need to staff their businesses.
  2. Creating a viable guestworker program that accommodates the needs of U.S. healthcare providers.  Employers should be allowed access to previously unused H-1B temporary work visas for nurses and physical therapists.
  3. Waiving the cap on employment-based visas for nurses and physical therapists, speech therapists and those providing other therapies.

Jackson Lewis attorneys in the Immigration Group are available to assist healthcare employers with all their immigration needs, including visa sponsorships for physicians, nurses, physical therapists, speech therapists, J-1 waivers for physicians, and Form  I-9 and E-Verify compliance.

The Department of State’s Bureau of Consular Affairs released on March 11th the April 2013 visa bulletin (available at http://travel.state.gov/visa/bulletin/bulletin_5900.html). Although the bulletin reports no significant progress was made in the employment-based categories, there was some progression.  Progress in priority date movement in employment-based categories includes EB-2 China moving from February 15, 2008 to April 1, 2008.  EB-3 All Chargeability Areas and EB-3 Mexico moved from May 1, 2007 to July 1, 2007. In addition, EB-3 China moved from January 22, 2007 to April 22, 2007.  Unfortunately, the EB-2 India category remained static.

What has yet to be seen is the impact the recent federal budget sequester will have on the progression of visa priority dates.  Jackson Lewis attorneys will continue to follow the situation and provide employers with these and other immigration-related updates.

Employers who plan to file for new H-1B employment visas in FY2014 should be prepared to file by April 1, 2013. While H-1B usage has been lower over the last several years, increased demand caused the FY2013 cap to be reached on June 11, 2012, less than two months after USCIS began accepting petitions. H-1B visas generally are limited to 65,000 per fiscal year (85,000 when U.S. Master’s Degree holder visas are included). The immigration fiscal year begins on October 1, and petitions are accepted for the upcoming fiscal year beginning April 1. Therefore, employers should consider filing for needed FY2014 H-1Bs on the first day that petitions are accepted, and hiring should be planned in anticipation of a lack of H-1B availability.

In good news for employers faced with fines for immigration law violations, OCAHO has determined that, as a matter of discretion, a company with 17 violations involving failure to prepare or present I-9s and 59 failures to properly complete the I-9 section 2 attestation should have its fine decreased by nearly 50%, to $41,400. USA v. Fowler Equipment Co., Inc. The determination was made based on the record and statutory factors. Employers should continue to be diligent in ensuring their I-9s are properly completed.

U.S. Immigration and Customs Enforcement is expected to publish the new Form I-9 (with a revision date of “(Rev. 03/08/13)N”) on March 8, 2013, in the Federal Register. https://www.federalregister.gov/articles/2013/03/08/2013-05327/introduction-of-the-revised-employment-eligibility-verification-form

Employers should begin using the new form to comply with their employment eligibility verification responsibilities.  There will be a 60-day transition period from the date of publication, after which no prior versions of Form 1-9 will be acceptable.  The new form has numerous changes from prior versions. Employers who fail to use Form I-9 (Rev. 03/08/13)N after that time may be subject to all applicable penalties as enforced by USCIS and the Department of Justice.

Employers may access the new Form I-9 (Rev. 03/08/13)N online by visiting www.uscis.gov.  To order USCIS forms, call 1-800-870-3676.  USCIS forms and information on immigration laws, regulations and procedures can be obtained by calling the National Customer Service Center at 1-800-375-5283 or by visiting USCIS’s I-9 Central web page at www.uscis.gov/I-9Central.  Jackson Lewis’ immigration attorneys are available to answer questions relating to the completion of the new form.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) in the U.S. Department of Justice announced February 8  that it had reached a settlement agreement with Avant Healthcare Professionals LLC, a healthcare staffing company based in Casselberry, Florida, resolving allegations that the company had engaged in a pattern or practice of citizenship status discrimination by posting discriminatory job advertisements on the internet.

The OSC’s investigation had found that the company’s internet-based job postings contained discriminatory language, impermissibly preferring foreign-trained individuals seeking permanent residence or H-1B visa sponsorship over U.S. workers.  The Immigration and Nationality Act (INA) prohibits employers from discriminating on the basis of citizenship or immigration status unless required by law, regulation or government contract.  None of those limited exceptions applied.  Under the terms of the settlement, Avant agreed to pay $27,750 in civil penalties, to change its internal policies and written procedures to incorporate the INA’s anti-discrimination protections, and to be submit to reporting and compliance monitoring requirements for three years.  For link, see http://www.justice.gov/opa/pr/2013/February/13-crt-173.html).

OSC is conducting random checks/audits of online postings, particularly of recruiters, job banks, and staffing companies to ensure compliance with INA anti-discriminatory provisions.  The OSC has published “Best Practices for Online Job Postings” which can be found at http://www.justice.gov/crt/about/osc/htm/best_practices.php.

INA’s anti-discrimination provisions also limit the type of questions employers can ask job applicants.  The OSC has approved two:

  • Are you legally authorized to work in the United States? (Yes or No).
  • Will you now or in the future require sponsorship for an employment authoring status or visa?

Employers cannot ask whether a job applicant is a United States citizen before making an offer of employment, unless required by law.  Since US citizens, permanent residents, refugees and asylees all are protected from citizenship status discrimination, asking the question pre-offer could expose the employer to charges of discrimination.  By the same token, an employer may not ask additional questions about a job applicant’s current visa status.

Generally, a U.S. employer is not obligated to sponsor a foreign national for a work visa.  The OSC has advised that an individual who requires employer sponsorship for a visa, such as an H-1B visa holder, is not a protected individual for citizenship status discrimination.  However, such individuals are protected against national origin discrimination.

While an employer is not obligated to sponsor a foreign national for a work visa, it may be obligated to do so if someone (such as a hiring manager, division chief, etc.) has promised to provide work visa sponsorship and if the foreign national relies upon that promise to his/her detriment.  In an environment of increased worksite enforcement employers should review their recruitment and hiring practices to ensure full compliance with the anti-discrimination immigration provisions pertaining to job advertisements as well permissible pre-hire inquiries in job applications.

 

The U.S. Chamber of Commerce and AFL-CIO have issued a joint statement of shared principles on a visa program for lesser-skilled foreign workers. http://www.aflcio.org/Press-Room/Press-Releases/Joint-Statement-of-Shared-Principles-by-U.S.-Chamber-of-Commerce-President-and-CEO-Thomas-J.-Donohue-AFL-CIO-President-Richard-Trumka.  As part of current immigration reform efforts, business and labor groups have been working together to find a mutually acceptable way of allowing employers ready access to foreign workers for jobs where insufficient numbers of U.S. workers are available while protecting the wages and conditions of all workers. The February 21 statement is a welcome development and follows previous reports that the two sides were far apart and talks may be breaking down. The failure to reach agreement for any such guest worker program is a key reason that comprehensive immigration reform legislation introduced in 2007 did not pass.

Following are the joint principles announced:

  1. American workers should have the first opportunity at available jobs;
  2. It must be recognized that even in tough economic times, there are instances where employers are unable to fill jobs with U.S. workers and that businesses must be able to hire foreign workers without going through a cumbersome and inefficient process; and
  3. There should be a data-driven and transparent process to inform and address future labor shortages, and the executive branch should establish an independent bureau to inform Congress and the public on the issue.

Both groups acknowledge that much remains to be done. Nonetheless, their pledge to continue working together to find an acceptable solution for a guest worker program is important in maintaining momentum for comprehensive immigration reform legislation as the bi-partisan Senate group working on legislation continues with its efforts (see Immigration Reform Effort Reignites in Congress: Bi-partisan Senate Group Proposes Fix to U.S. System).

 

President Barack Obama has identified immigration reform as the number one item on his domestic policy agenda.  On February 5, the new Congress held its first hearing on overhauling immigration laws.  The administration and legislature seem primed for action.

At the February 5th House Judiciary Committee hearing, the new House Judiciary Committee Chairman, Bob Goodlatte (R-Va.), noted there is agreement that “our nation’s immigration system is in desperate need of repair,” that it is “not working as efficiently and fairly as it should be,” and we need to “begin to explore ways to fix our broken system.”

Businesses should pay particularly close attention to the likelihood that any reform will include a mandatory E-Verify provision.  E-Verify, a system operated by the Department of Homeland Security’s U.S. Citizenship and Immigration Services and the Social Security Administration, verifies applicants’ work eligibility electronically.  At present, only employers in certain states and federal contractors are obligated to participate in the program.  Anticipated immigration reform legislation will change that.

Two bills  are relevant:

H.R. 478, sponsored by Congressman Phil Gingrey (R-Ga.), would “make the E-Verify Program permanent and mandatory, and to provide for certain changes to procedures for participants in the Program,” by amending the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 111 Stat. 3546 (Sept. 30, 1996).

S.B. 202, sponsored by Senator Charles Grassley (R-Ia.), would “expand the use of E-Verify, to hold employers accountable,” among other things.   Senator Grassley explained,

My legislation would increase penalties on employers who continue to hire people unauthorized to work in the country.  Employers would be required to check the status of current employees within 3 years, and would allow employers to run a check prior to offering a job, saving that employer valuable time and resources.  Employers will also be required to re-check those workers whose authorization is about to expire, such as those who come to the United States on temporary visas.

Any immigration reform likely will contain mandatory E-Verify provisions as these bills suggest.  Employers need to consider: (1) what is involved in E-Verifying new hires AND, potentially, the entire workforce, AND (2) what would it cost.

E-Verify is an expense.  Compliance would require a significant investment in human capital.  “False positives” would require further inquiry, taking additional HR effort and might result in the removal of workers.  According to E-Verify’s internal database audit, a national mandate would deem 1.2M to 3.5M legal employees initially ineligible to work.   It would challenge even the most robust HRIS systems.  Employers would need to create parallel E-Verify systems to existing I-9 processes.

The government’s study also projected 770,000 erroneous final non-confirmations, requiring employers to separate the affected employees.

According to one estimate, by Bloomberg Government, businesses with fewer than 500 workers would bear 99 percent of the $2.7B participation cost, if E-Verify became mandatory.  A 2008 Congressional Budget Office report estimated that requiring E-Verify nationally would cut federal tax revenue by more than $17B.

Employers should examine their protocols to identify the impact various local, state, or federal versions of mandatory E-Verify may have on their compliance systems.  The most sophisticated compliance regime is only as good as the least focused member of the team.  There is nothing more exciting for a government prosecutor than finding a company that does not follow its own policies and procedures.  I-9 inspections and E-Verify review via Government data-mining activity is no different.

Policy development and training are key steps in a compliance regime. Spot audits and remedial education are critical.  Unfortunately, in many business operations   Form I-9 completion, necessary for satisfying E-Verify requirements for a new hire, falls to someone who has received only little instruction and has no inkling as to the significance of the verification.

To ensure that the regime is operating effectively, internal audits should be conducted routinely. The audits should ensure the existence of evidence demonstrating that those responsible for effectuating policies are competent.  Failures do occur. In our experience, however, the government will credit remediation as long as it is consistent, pursuant to an employer’s unique verification protocol, and is non-discriminatory.

To be sure, no one really knows what immigration reform is going to look like.  But E-verify, we believe, will be its centerpiece.  To prepare for that eventuality, these precautions are worth taking seriously now.

The Senate Judiciary Committee will hold its first hearing on immigration reform, featuring testimony from Homeland Security Secretary Janet Napolitano, on February 13, 2013.

Employers who place workers at  multiple worksites, whether theirs or someone else’s, must include the assignment’s details to the Department of Labor (DOL) and the Citizenship & Immigration Service (CIS) on H-1B petitions.  As the nation’s workforce embraces alternative work modes  (e.g., remote workers, roving employees, and virtual office workers), foreign nationals  who are so employed  and their employer-petitioners face greater scrutiny than those petitioning for “traditional” work.

H-1B regulations require that an employer wishing to post an H-1B worker at multiple worksites must provide an itinerary that will cover the entire period of H-1B employment requested, specifying the amount of time the employee will spend at each worksite.  If the employer cannot establish that a qualifying employer-employee relationship will exist during the entire period sought, USCIS may limit a petition’s validity to periods of qualifying employment established by the evidence.  Therefore, it is critical that the petitioner be ready to provide a detailed work itinerary for the employee’s assignments for the duration of the proposed H-1B validity.

Jackson Lewis has a national team of expert H-1B attorneys who work with employers of all sizes to structure H-1B filings that comply with these regulations. We can assist employers with the drafting of clear itineraries and with documenting the appropriate employer-employee, controlling relationship required by CIS.

The Department of Labor (DOL) is launching an online registry to publish data from certified PERM and Labor Condition Applications filed via its online iCERT system.  The registry, expected to launch July 1, will include information about cases certified as far back as April 2009. New cases will be available as early as two business days after certification.  The registry will be a searchable database. Users will be able to pull up online information, as well as redacted PDF copies of the applications.  The DOL will redact employee names, employee personal information, employer FEINs and other sensitive information. The identities of employers who are sponsoring foreign nationals for employment and the positions involved, however, will be disclosed. As a result, the public will have more access to employment opportunities available by position, company, industry, and location.

Employers wishing to sponsor employees for nonimmigrant H-1B, H-1B1, E-3, H-2A and H-2B visa status for work in the U.S. must file a Labor Condition Application (LCA) with the DOL to attest to fair wage and labor standards. They must provide details regarding the occupation, working conditions, and work locations for which the employee is being sponsored.  Employers wishing to sponsor workers for permanent resident status in the U.S. often must start the process by filing a PERM Labor Certification Application with the DOL to attest that it has recruited for the position and cannot find any willing, qualified or able U.S. workers to fill the position. Both the LCA and the PERM applications are filed online (preferably), via the DOL’s iCERT database.

Jackson Lewis has a national immigration team that routinely navigates the iCERT system for daily PERM and LCA filings. We will continue to track the progress of this registry and will inform you when more is known about information to be made public.