On February 27, 2012, the Board of Alien Labor Certification Appeals (“BALCA”) determined that the job titles used in print advertisements for labor certification cases do not have to match the ones provided in the actual application if the occupational classification includes a broad range of job titles.  In Matter of Target Point Media, LLC, the employer filed a labor certification application for the position of Business Development Specialist.  As part of this application, it ran advertisements for a Business Development VP with two newspapers.  After conducting an audit, the CO determined that this change violated the regulations regarding print advertisements.  In its review, BALCA stated that there must be a “logical nexus’ between the advertisement and the position listed on the employer’s application.  Since this position was considered under the occupational classification of Market Research Analyst, which includes a “broad range of job titles,” the nexus was established.  Consequently, the job was “clearly open toU.S. workers” and the position was described “with sufficient specificity to apprise U.S. workers of the opportunity.”  BALCA reversed the CO’s denial.

On December 20, 2011, the Administrative Review Board (“ARB”) of the Department of Labor decided In Matter of University of Miami . In this case, the University of Miami submitted a petition for a H-1b worker who would perform as a clinical anesthesiologist. When the doctor arrived in the United States, the University of Miami told her that she must obtain a social security card before beginning employment. The doctor received the social security card and informed the University that she was ready to begin working. Due to issues regarding the offered position, the doctor’s employment was terminated. However, U.S. Citizenship & Immigration Services (“USCIS”) was not notified for more than four months. The ARB determined that the time that the doctor spent trying to obtain a social security card was involuntary non-productive time. Consequently, the University was ordered to pay backpay for this period. In addition, the ARB stated that the doctor’s termination only became effective on the date that USCIS was notified. Thus, the University was also liable for backpay from the date of actual termination until the date that USCIS received notification. This case should remind all employers that they risk being held liable for backpay if they create requirements that an H-1b worker must fulfill before starting work and if they fail to alert USCIS to a H-1b worker’s termination. If you have any questions regarding these types of issues, please contact the Hammond Law Group.

In a recent decision, a US employer was held liable for back wages of over $150,000 for a terminated H-1b worker that it never even employed.  When the employer chose not to employ the worker and in essence, withdrew  its employment offer, it failed to notify the USCIS. The Judge stated,

“Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when itsigns the labor condition application: the duty to pay the required wage rate. Until itdoes, the employer remains on the hook for the H-1B worker’s wages and benefits. Forthe price of a postage stamp, the Employer often can absolve itself of further liability.”

ICE recently provided some updated data regarding I-9 audits and recents fines against U.S. businesses. 4,000 business have been subject to I-9 investigations since FY 2009 with over $7 million in fines being levied. If you have not audited your I-9 records lately, it may be a good item to add to your task list. For information on how HLG could assist with compliance related matters, please contact Sherry Neal at sln@hammondlawgroup.com

I don’t know anyone that has a problem with making sure that employees who are hired are legally permitted to be employed however, is E-Verify the answer ? With all the talk of Congress making E-Verify mandatory, some consideration as to cost and the old adage of killing an ant with a bazooka comes to mind.  The Center for American Progress posted an interesting summary of the costs that we can expect.

Last week, ICE issued 1000 subpoenas directed at companies throughout the US. The ICE investigation is focused on I-9 compliance and unauthorized employment. For questions about HLG’s compliance practice, contact Sherry Neal at sln@hammondlawgroup.com

The U.S. Supreme Court, in a 5-3 ruling, declared that an Arizona law that punishes employers that knowingly hire persons not authorized to work was constiutional.  To read the complete opinion click here.

With the H-1b cap season in full swing, the USCIS has issued a new set of FAQ on the subject of “cap-gap”.  A “cap-gap” occurs when a foreign student’s EAD card, issued pursuant to the OPT rules, expires prior to October 1, 2011. The USCIS has adopted rules that provides for an automatic extension that allows students to continue to be employed under the OPT provisions as long as their sponsoring employer has timely filed an H-1b cap subject petition that is properly receipted. An employer should be careful that the employee’s I-9 form is properly completed in this situation. We applaud the USCIS for its “cap-gap” policy.

The Huffington Post today reported allegations of B-1 visa abuse by the Indian based IT powerhouse Infosys.  With Congressional hearings on the H-1b visa looming, more bad press about abuses of visas by a major IT house, is not good news for the industry. We will update developments on this story as they occur.

The DOL recently updated it’s FAQ’s designed to guide employers and others regarding the issuance of prevailing wage determinations.