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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).

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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.

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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.

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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.

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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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The Administrative Appeals Office (AAO) recently dismissed an appeal brought by a U.S. petitioner, a convenience store. The issue of the appeal was whether or not the petitioner had the ability to pay the proffered wage as of the priority date and continuing until the beneficiary obtained lawful permanent residence. The petitioner sought to employ the beneficiary permanently as a Manager. The ETA 750 was accepted on March 28, 2001, and the proffered wage was $18.00 per hour ($37,440.00 per year). In order to prove the ability to pay, the USCIS requires that a petitioner demonstrate financial resources sufficient to pay the beneficiary’s proffered wages from the time the labor application is accepted until the beneficiary attains permanent resident status. According to regulations, evidence of this ability shall be in the form of copies of annual reports, federal tax returns, or audited financial statements.

In determining whether the employer has the ability to pay, the USCIS will first examine whether the petitioner employed and paid the beneficiary during that period. If the petitioner can show that it employed the beneficiary at a salary equal to or greater than the proffered wage, the evidence will be considered prima facie proof of the petitioner’s ability to pay the proffered wage. However, if the petitioner does not establish that it employed and paid the beneficiary, the USCIS will then examine the net income figure reflected on the petitioner’s federal income tax return. Net income results after subtracting costs and expenses from total revenue.

In the aforementioned case, at the time the labor was submitted, the beneficiary was not employed by the petitioner. Accordingly, the USCIS chose to review the petitioner’s net income figures. As a result, the petitioner’s federal income tax returns were insufficient to pay the beneficiary the proffered wage, therefore, the USCIS elected to review the petitioner’s net current assets. Net current assets are the difference between the petitioner’s current assets and current liabilities. To clarify, net current assets are assets that are continually turned over in the course of a business during normal business activity; they are in other words, the petitioner’s working capital. After thorough review, it was determined that the petitioner had insufficient funds to pay the beneficiary the proffered wage.

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The Administrative Appeals Office (AAO) recently dismissed an appeal

brought by a foreign national who applied for a re-entry permit while outside of the Continental United States. The regulation at 8 C.F.R. § 223.2 (b) states in pertinent part that except as otherwise provided, an application may be approved if filed by a person who is in the United States at the time of application and is a lawful permanent resident or conditional permanent resident.

In the aforementioned case, the applicant filed Form I-131, Application for Travel Document with the United States Citizenship and Immigration Services (USCIS) on April 24, 2006. On July 24, 2006, a request for additional evidence (RFE) was issued asking the applicant to produce evidencing indicating his actual date of departure from the United States. The applicant replied with evidence that he had departed the U.S. on February 28, 2006. The applicant did not dispute that he was outside of the U.S. when he filed Form I-131; however, he explained that he was only attempting to extend his expired travel document.

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Many of our clients ask us why certain nonimmigrant visa categories allow individuals to enter the United States and apply for permanent residency while other nonimmigrant categories do not. The answer is “dual intent.” So what exactly is dual intent? The doctrine of dual intent states that even though a nonimmigrant must honestly demonstrate that he or she has the intent to remain in the United States to remain temporarily, he or she may have both a short term intent to leave and a long term intent to remain permanently.

Most nonimmigrant visa categories require the individual that is obtaining a nonimmigrant visa to truly have an intent not to remain in the United States. Therefore, since most nonimmigrant categories are not governed by the doctrine of dual intent, individuals entering the United States in those categories can not apply to change their status from a nonimmigrant to that of a permanent resident while in the United States. However, in the case of E, H-1, L-1, O, and P visas, the United States Citizenship & Immigration Service (USCIS), recognizes the doctrine of dual intent. Consequently, individuals who enter or are in the United States in E-1, E-2, E-3, H-1, H-4, L-1, O-1, 0-2, P-1, P-2, or P-3 status, may apply to adjust their status to that of a permanent resident.

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No matter what avenue you take towards permanent resident status (“green card”), whether it is family-based petition, employment-based petition, or diversity visa based, the priority date of your petition determines the order of visa availability for each particular category.

Priority Dates for Family-Based Petitions

For family based petitions, the priority date is established when the I-130 form (Petition for Alien Relative) is filed with the U.S. Citizenship and Immigration Services (USCIS). If an I-130 petition is denied because of ineligibility and then later resubmitted when eligible, the priority date is established at the time of resubmission of the petition. Matter of Carbajal, 20 I&N Dec. 461 (BIA 1992).

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In my previous blog entry, I informed you of the E-Verify program instituted by the Federal Government. The Federal Government is requiring all of its contractors to utilize this system for employment verification of their employees. Even though this is a positive first step in ensuring that employers comply with legal hiring practices, the E-Verify system does have its drawbacks.

All participating employers are required to enter personal information from Form I-9 into the government database in order to submit a query to verify a new hire’s employment eligibility. All employers who sign up with E-Verify must manually enter this key information into the government database and wait for a response that will take approximately three (3) to five (5) seconds. Although this may seem like a simple task, there is a great chance for human error. If an employer enters the wrong data into the query, and in return receives a TNC or a mismatch, the employee is required to fix the problem, either in person or over the telephone with either the SSA or USCIS, to confirm their work authorization. This TNC or mismatch turns into a headache for the employee as well as the employer. Accordingly, there is a strong possibility that people that are legally authorized to work in the U.S. may be denied because of simple human data error.

Additionally, as with any Internet based computer programs, there is a possibility that the “system” could go down due to receiving too many queries at one time, or due to minor computer system glitches. However, the USCIS claims that E-Verify has the capacity to handle up to 60 million queries per year, and promises that it will continue to work to update the current pilot architecture to handle more queries if needed.

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