Posted On: August 27, 2008

AAO gives Petitioner another chance to prove NEED for H2B welder workers

The Administrative Appeals Office recently withdrew the decision of the Director, Vermont Service Center and remanded the matter to him for further action and consideration.

In the aforementioned case, the Petitioner is a Mississippi Limited Liability Company supplying labor and industrial services for the marine and petroleum/chemical industries in the Mississippi Gulf Coast area. The Petitioner submitted a H-2B petition on behalf of three beneficiaries. Upon reviewing the record, the AAO found that the record did not support the director’s decision to approve the petition. Moreover, the AAO found two separate grounds for remanding the petition: (1) petitioner had not established a temporary need for the services of the three beneficiaries, and (2) petitioner had not established that the three beneficiaries possessed the minimum amount of experience necessary to perform satisfactory the job duties described in the present petition. These two specific issues were not raised by the director in his Notice of Findings (NOF) issued to the Petitioner; therefore, the case was remanded.

The regulations require the petitioner to submit documentation that the alien qualifies for the job offer as specified in the application for labor certification. In the present case, the application for alien employment certification indicated that the minimum amount of experience needed to perform the job duties is two years of experience for the job being offered. Upon careful review of the record by the AAO, no evidence was submitted illustrating the beneficiaries experience and/or qualifications. Absent proof of the beneficiaries’ experience, the petition may not be approved. Additionally, there is another reason as to why the petition cannot be approved. The petitioner sought approval of the proffered position as a peakload need. The regulation regarding peakload need provides that the petitioner must establish that it regularly employs permanent workers to perform the services or labor at the place of employment and that it needs to supplement its permanent staff at the place of employment on a temporary basis due to a seasonal or short-term demand and that the temporary additions to staff will not become a part of the petitioner’s regular operation. The director issued a request for evidence (RFE) to the petitioner requesting evidence that the petitioner’s need for the beneficiaries’ services is temporary. In response to the RFE, counsel for the petitioner sent a letter of intent to contract between another company and the petitioner, and a letter from the petitioner indicating that its client had a peakload need for temporary workers. Upon review of this evidence, the AAO concluded that the documentation presented in the record was insufficient to establish the actual H2B need asserted. The problem lies in the new information provided; the intent to contract letter was never alluded to or provided in the original petition for H2B temporary workers, and no other information was presented concerning the other company/client. Additionally, the petition sought 250 temporary workers, but has decreased to 3 workers without documentation as to why. Pursuant to case law, simply going on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of proof in these proceedings. Accordingly, the burden has not been satisfied by the petitioner and the AAO has afforded the petitioner another opportunity to provide evidence of the experience and temporary need for the H2B beneficiaries.

Posted On: August 26, 2008

BALCA affirms denial of Labor Certification based on lack of requested evidence

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the final determination of a Certifying Office (CO) denying labor certification for an alien worker for the position of “Day Worker.”

In the aforementioned case, the Labor Certification (LC) was filed by the employer, a private household, on behalf of an alien worker in April 2001. In January 2007, a Notice of Findings (NOF) letter was issued by the CO requesting additional evidence for proof that a bona fide job opportunity actually existed at the residence and documentation that the employer had the ability to pay the actual wages offered. In response to the NOF letter, the employer submitted a copy of a utility bill showing a residential address for the employer, and thus did not provide any other documentation. The CO issued a final determination in August 2007 denying the LC. The CO concluded that the utility bill verified the employer’s residential address, but found that the response to the NOF was deficient because it did not address the ability of the employer to pay the Alien’s salary. Thereafter, the employer’s attorney requested BALCA review and attached his own letter to the request. The attorney suggested that the CO failed to take into consideration that the LC was for a domestic position in a private home, and thus all the boilerplate language in the NOF did not apply in the particular situation. The employer’s attorney requested that denial be reversed and that labor certification be granted.

Upon BALCA review, the board relied on 20 C.F.R § 656.20(c)(1) which specifically states that an application for labor certification must clearly show that an employer has sufficient funds available to pay the salary of the alien worker. This requirement is the same whether the position is in a private home or within a Fortune 500 company. Additionally, a CO may make reasonable requests of the employer to provide evidence of such, and failure to comply with those requests alone constitutes grounds for denial of certification. BALCA reviewed the NOF letter finding that it expressly stated that if the employee is to be employed in a private home, the employer should provide its most recent household Federal income tax return along with a utility bill in its name. BALCA further stated that it may have been reasonable for the employer not to submit some of the documentation requested in the NOF which was not applicable to a private home; however, to ignore the request entirely was unreasonable. Accordingly, BALCA affirmed the final determination of the CO denying the labor certification because the employer failed to produce documentation that would evidence its ability to pay the Alien’s salary.

The MVP Law Group, P.A. strongly encourages its clients and others to fully comply with all NOF requests issued by COs of the Department of Labor (DOL). Specifically, if the documentation requested in an NOF does not apply to your situation indicate why it does not apply on a separate sheet of paper. It is not wise nor recommended that you ignore requests for additional documentation from the DOL as failure to respond constitutes grounds for denial of certification in itself.

Posted On: August 21, 2008

No-Match Letter Does Not Provide Constructive Knowledge of Immigration Violations

On August 15, 2008, the United States Court of Appeals for the Ninth Circuit issued an opinion finding that a no-match letter does not provide Constructive knowledge of Immigration Violations.

The case arose from the response by Aramark Facility Services (“Aramark”) to a no-match letter from the Social Security Administration (“SSA”), which indicated that Aramark had reported information for 48 of its employees that did not match the SSA’s database. Aramark suspected immigration violations and demanded that the suspected employees correct the mismatch within three days by proving that they had begun the process for applying for a new card. Approximately a week later, Aramark fired 33 of the 48 employees. The Service Employees International Union (“SEIU”) filed a grievance on behalf of the fired workers, contending that the terminations where without just cause and in violation of the collective bargaining agreement between Aramark and SEIU. An arbitrator ruled for SEIU and awarded the terminated employees reinstatement and back-pay, finding that there was no convincing information that the workers were undocumented. Thereafter, the District Court vacated the award on the ground that it violated public policy, and SEIU timely appealed.

In the aforementioned case, the main public policy to which Aramark points is expressed in the Immigration Reform and Control Act of 1986 (“IRCA”). Specifically, Aramark cites the laws that (1) employers are subject to civil and criminal liability if they employ undocumented workers “knowing” of their undocumented status, and (2) the term “knowing” includes constructive knowledge. As defined in relevant regulations, “constructive knowledge is knowledge that may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Aramark argued that two facts gave it constructive notice of immigration violations: (1) the no-match letters themselves, and (2) the employees responses (or lack thereof).

According to the SSA, the main purpose of the no-match letters is not immigration-related, but rather is simply to indicate to workers that their earnings are not being properly credited. Additionally, SSN mismatches could generate a no-match letter for many reasons, including typographical errors, name changes, compound last names, and inaccurate or incomplete employer records. An SSN discrepancy does not automatically mean that an employee is undocumented or lacks proper work authorization. In fact, the SSA tells employers that the information it provides them “does not make any statement about…immigration status” and “is not a basis, in and of itself, to take any adverse action against the employee.” Employers do not face any penalty for ignoring a no-match letter.

Aramark also contends that it gave its employees ample time to respond to the no-match letter; however, the District Court found otherwise. Aramark’s return policy was extremely demanding in that an employee had three days to respond from the post-mark of the letter. Essentially, this gave the employees two days in order to gather documentation, possibly consult an attorney, and proceed to an SSA office during business hours, all while still continuing to work for Aramark.

In conclusion, Aramark had produced no evidence concerning the fired employees’ actual employment status other than that they were named in the no-match letters and did not quickly respond to the request for further verification of their social security status. This evidence does not illustrate that any of the workers were actually unauthorized to work, because a social security card is only ONE way to prove work authorization. Therefore, Aramark did not possess constructive knowledge/notice of immigration violations, and the SEIC on behalf of the fired employees shall be entitled to the arbitration award, as it is not against public policy when no evidence of immigration violations were found. Employers must look at the totality of the circumstances to determine whether they have constructive knowledge of suspected immigration violations.

Posted On: August 20, 2008

L-1B Visa Requirements and Recent related AAO decision

The L-1B intra company business visa allows specialized knowledge employees to transfer from a foreign company to a U.S. parent, affiliated, or subsidiary branch to perform temporary jobs. For a foreign applicant to attain L-1B visa status, three requirements must be met. First and foremost, the petitioning U.S. company must be affiliated with the company abroad, as a branch, subsidiary, or affiliate. This relationship shall be demonstrated either by one entity having control over the other, or by both entities being controlled by the same person or entity. Additionally, the L-1B visa applicant must be employed at the company abroad for at least one of the previous three years before the L-1B visa application is filed with the United States Citizenship and Immigration Services (USCIS). Finally, the employee must be coming to work at the U.S. company to utilize specialized knowledge. An employee with “specialized knowledge” has either a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company; or demonstrates an advanced level of professional or technical expertise, and proprietary knowledge of the organization’s services, products, technology, strategies, or any other corporate function that is essential to the U.S. company’s successful operation.

The Administrative Appeals Office (AAO) recently reviewed a decision certified by the Director of the California Service Center (CSC). The particular case involved the submission of an I-129 petition on behalf of a foreign professional for L-1B nonimmigrant visa classification. The director originally denied the petition after concluding that the petitioner failed to establish that it had been doing business or that the beneficiary would be employed in a capacity requiring specialized knowledge. Subsequently, the petitioner submitted a motion to reopen, and the director entered a new decision denying the petition on the same two grounds. The certified decision was thereafter sent to the AAO for review.

The purpose of review by the AAO is to determine from the documentation produced by the petitioner whether the petitioner had been doing business and whether the beneficiary would be employed in a capacity requiring specialized knowledge. After a thorough review and analysis of the evidence produced by the petitioner, the AAO found that the petitioner had been doing business. Accordingly, the decision of the director as to the first issue dealing with the petitioner’s business had been withdrawn. The AAO then reviewed the evidence in light of the second issue, whether the beneficiary would be working in a specialized knowledge capacity. According to the AAO, the record did not distinguish the beneficiary’s knowledge as more advanced than the knowledge possessed by other people employed by the petitioning organization or by workers employed elsewhere. Based on the evidence presented, the AAO concluded that the beneficiary will not be employed in the United States, and was not employed abroad, in a capacity involving specialized knowledge.

The legislative history of the term “specialized knowledge” provides ample support for a narrow interpretation of the term. In the aforementioned case, the petitioner had not demonstrated that the beneficiary should be considered a member of the “narrowly drawn” class of individuals possessing specialized knowledge. In this proceeding, the burden of proving eligibility for the benefit sought remained entirely with the petitioner and the petitioner failed to meet that burden. Accordingly, the decision of the director was affirmed in part and withdrawn in part. As a result, the petition was denied.

Posted On: August 14, 2008

Future Rule Tightening by the U.S. Department of Labor

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.

Posted On: August 13, 2008

September 2008 Visa Bulletin

The Department of State Released its latest Visa Bulletin today. The September 2008 visa bulletin still shows employment based third preference (EB-3) visas as unavailable while the employment based second preference (EB-2) is current for all areas of chargeability except for China and India. The EB-2 priority dates for China and India have moved up to August 1, 2006. Click here to view the September 2008 Visa Bulletin.

Posted On: August 13, 2008

The fine for "Benching" H-1B employees

The Immigration and Nationality Act (INA) permits employers to employ nonimmigrant alien workers in H-1B specialty occupations in the United States. In order to employ H-1B non-immigrants, an employer must obtain certification from the United States Department of Labor (DOL) after filing a Labor Condition Application (LCA). The LCA stipulates the wage levels and working conditions that the employer guarantees for the H-1B non-immigrants. After the employer received a certified LCA, the employer then petitions The United States Citizenship and Immigration Services (USCIS) for an H-1B visa on behalf of the nonimmigrant. An employer violates the INA if, for employment-related reasons, it fails to pay an H-1B nonimmigrant worker who is in "nonproductive status." Employment-related nonproductive status results from factors such as lack of available work for the non-immigrant or a non-immigrant's lack of a permit or license. Furthermore, an employer violates the INA when it deducts from a nonimmigrant's wages filing fees that INS collects from the employer to process the H-1B petition.

In a recent decision, Rajan v. International Business Solutions, Ltd.,
03-104 (ARB 8/31/04), the U.S. Department of Labor’s Administrative Review Board (ARB) examined some important H-1B related issues relating to the LCA. In particular, the ARB benching in the context of the LCA, the validity of a beneficiary’s employment start and end dates and payment of H-1B fees by an H-1B beneficiary.

Case Background
International Business Solutions, Ltd (IBS), hired Ms. Rajan in a specialty occupation on an H-1B. IBS subsequently discharged Ms. Rajan after it failed to pay her salary while she was in nonproductive status (i.e., she was on “bench”). Ms. Rajan complained to theDOL’s Wage and Hour Division seeking back wages and reimbursement of $1,500 she paid to IBS, at its request, for the H-1B filing fee. After an investigation, the DOL found that IBS had violated the INA by failing to post notice of the LCA and failing properly to establish the prevailing wage rate. The DOL’s administrator did not make findings regarding Ms. Rajan's complaint that IBS failed to pay her wages and charged her for the H-1B filing fee. Ms. Rajan then requested a hearing before an Administrative Law Judge (ALJ) who found that IBS violated the INA by failing to compensate her while in nonproductive status and by assessing her money to pay the H-1B filing fee. The ALJ accordingly ordered IBS to pay Ms. Rajan back wages and to reimburse her for the money she had paid IBS for the fee. The ALJ remanded the case to the Administrator to determine whether to impose a civil money penalty for the filing fee violation. IBS petitioned for review of the ALJ's decision.

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