UPDATE:

On March 28, 2013, DOL suspended issuance of H-2B Prevailing Wage Determinations due to the Court’s decision on the 2008 wage rule.

http://www.foreignlaborcert.doleta.gov/news.cfm

Further, effective March 22, 2013 U.S. Citizenship and Immigration Services (USCIS) temporarily suspended adjudication of most Form I-129 H-2B petitions for temporary non-agricultural workerswhile the government considers appropriate action in response to the Court’s decision on the wage rule.

******

In a four-year battle over the Department of Labor’s rule regarding the methodology for setting H-2B prevailing wage rates, a federal district court has vacated the 2008 H-2B Wage Rule, granting permanent injunctive relief and remanding the case to the DOL.  The court gave the DOL 30 days to comply.  Comite de Apoyo a los Trabajadores Agricolas v. Solis, No. 09-240 (E.D. Penn. Mar. 21, 2013).  The court answered “yes” to the question: “Whether the DOL’s continued use of the 2008 Wage Rule—which has been found procedurally invalid by this Court and substantively invalid by the DOL—justifies vacating the Rule and barring the Rule’s continued use.”

Before requesting H-2B non-agricultural temporary worker classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification from DOL that, among other things, certifies that the H-2B workers would be paid at least the prevailing wage assessed by DOL. Over the past three decades, the DOL has periodically changed its methodology for calculating prevailing wages, without notice and comment, and often without explanation. The 2008 Wage Rule introduced the “arithmetic mean.” It states: “the prevailing wage for labor certification purposes shall be the arithmetic mean . . . of the wages of workers similarly employed at the skill level in the area of intended employment.”  The DOL divides each unskilled, H-2B occupation into four separate skill levels and calculates a prevailing wage for each level.

The 2008 H-2B wage methodology rule was promulgated without seeking public comment during the rulemaking process.  A federal district court, on August 30, 2010, ruled the 2008 Rule violated the Administrative Procedure Act (APA) and ordered the DOL to promulgate new, APA-compliant rules for calculating the prevailing wage rates.  Even though DOL published a new final H-2B Wage Rule on January 19, 2011, its implementation has been held up due to delays by Congressional “appropriations concerns” denying DOL funding.

The court found that H-2B labor certifications issued under the 2008 Wage Rule exceeded the authority delegated to the DOL.  The 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,” according to the court.  Consequently, the Court concluded that labor certifications issued under the 2008 Wage Rule fall “directly outside the narrow range of circumstances under which the DOL is authorized to issue labor certifications and exceeds the bounds of the DOL’s delegated authority under Section 706(2)(C) of the APA.”

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.

Links:
http://dl.dropbox.com/u/27924754/CATA%20168%203-21-13.pdf

This week the Department of Homeland Security’s Customs and Border Patrol (CBP) agency, which manages and protects US borders and ports of entry, announced the release of a new rule to automate the I-94 admission/departure process.  Once in effect, the rule will be implemented over a planned four week period, beginning at airports in Orlando, Chicago, Las Vegas, and Charlotte, and then expanding nationwide.   CBP recently met with stakeholders and explained that the current system, whereby foreign travelers entering the US receive a stamped paper card in their passports as proof of lawful admission, and then have the card removed when they depart, costs the agency in excess of $12 million per year in data entry costs through a government contractor.  As the same data is reportedly available digitally to CBP already, the move has been presented as a way to not only reduce government expenditures, but also to smooth travel into and out of the country and enhance the data integrity of these records.  Once the new system is implemented, international travelers will still have access to a paper I-94, and flyers to be handed out at airports and other ports of entry will direct anyone needing a hard copy of their I-94 record to visit www.cbp.gov/I94.  Visitors often need a hard copy of their I-94 form to demonstrate the ability to work legally in the United States or to obtain other benefits.  The new website will go live 30 days from the date the new rule is published in the Federal Register, the same date that the rule is anticipated to take effect.  It is unclear whether there will be a public comment period announced, so readers are encouraged to check back for updates.

http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/03212013.xml

Additional details and instructions available at:

http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/i94_rollout.xml

AUTHOR:  Rebecca Massiatte.

U.S. Citizenship and Immigration Service (USCIS) has announced a temporary adjustment to its premium processing practice for H-1B petitions for the fiscal year (FY) 2014. Requests for premium processing (15-calendar-day processing time, subject to USCIS request for additional evidence/information) of cap-subject H-1Bs received between April 1 and April 14, will be adjudicated starting April 15, 2013. Premium processing for non-cap H-1Bs and all other cases will begin as normal, when the request is received.

This move is necessary, USCIS explains, because it anticipates that it may receive more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher between the first day petitions are accepted, April 1, 2013, and April 5, 2013. Should this happen, FY 2014 could be the first time since April 2008 that the H-1B cap will require a lottery.

USCIS will accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, during the period that premium processing is unavailable (from April 1 to April 14).  Employers also may upgrade a pending H-1B cap petition to premium processing once a receipt notice is issued. All requests for premium processing received between April 1, 2013, and April 14, 2013, will be adjudicated when premium processing begins on April 15, 2013.

We strongly urge employers to consult with their Jackson Lewis immigration counsel to plan the filing of the necessary petitions.  We will continue to provide updates on the H-1B cap.
 

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).