On Jan. 31, 2020, USCIS published the Form I-9 Federal Register notice announcing a new version of Form I-9, Employment Eligibility Verification. This new version contains minor changes to the form and its instructions. Employers should begin using this updated form as of Jan. 31, 2020. Employers may continue using the prior version of the form (Rev. 07/17/2017 N) until April 30, 2020. After that date, they can only use the new form with the 10/21/2019 version date. The version date is located in the lower left corner of the form. The major changes are to the form's instructions, which include: 1. Clarified who can act as an authorized representative on behalf of an employer 2. Updated USCIS website addresses 3. Provided clarifications on acceptable documents for Form I-9 4. Updated the process for requesting paper Forms I-9 5. Updated the DHS Privacy Notice
Possible H-1b abuse by Uber ? Check out this report in the Mercury News. The report that they are filing for senior level software engineer positions at a level 2 OES wage appears to be a direct contravention of well-established DOL rules. Hopefully, after this practice has been brought to light, the company will take corrective action or if not, the DOL will investigate. For the legal immigration system to work well and not open itself up to extreme restrictions, U.S. employers must play by the rules.
Yes, H-1b fraud is real; less prevalent than the White House would have you believe but, more prevalent than many in the industry want to admit. As a recent CEO discovered, fraudulent acts can lead you to prison. Check out the story of this CEO who was recently sentenced to 7 years behind bars.
It is being reported by Forbes, that ICE has now started site investigations of OPT STEM workers to verify that their employment is in compliance with USCIS regulations and policy. The 2 primary questions they are likely to address are: 1. Is the student being paid at least a Level 1 prevailing wage ? and 2. Is the student being provided training by their employer in accordance with the training program (I-983) submitted to the school and the USCIS ? As an employer, now may be a good time to audit your OPT STEM workforce and insure that you are in compliance.
Last week, the DOL released a memo in the form of Field Assistance Bulletin 2019-3 reminding employers about the notice requirements relative to LCA's in the context of the use of electronic postings. Many staffing companies have difficulty posting LCA's at 3rd party worksites. As a result, many employers and third party providers, began posting LCA's on their own web-sites (completely accessible to the public) in an attempt to comply with the notice requirement. In this memo, the DOL made clear that this action alone is not sufficient to meet the notice requirement. The DOL states that simply because a 3rd party employee can visit an H-1b employer's web-site is not sufficient notice if he does not know he should. Further, the DOL goes on to state that the 3rd party employees must be able to determine which notices/LCA's are applicable to their work-site. We continue to take the position that a database of notices/LCA's can be a part of a compliance program but, must be accompanied by additional actions. Feel free to reach out to me directly for more information.
The USCIS recently issued a revised version of the Form I-9, Employment Eligibility Verification Form. This form must be used beginning on September 18, 2017. All existing storage and retention rules for Form I-9 must continue to be followed. As you know, employers use the Form I-9 to verify the identity and employment authorization of newly hired employees. In this latest revision, the USCIS modified the List of Acceptable Documents to include adding to List C the Consular Report of Birth Abroad (Form FS-240), combined all certifications of report of birth issued by the U.S. Department of State (Forms, FS-545, DS-1350 and FS-240) into List C, and renumbered all List C documents except the Social Security Card. Additionally, the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices was changed to its new name of Immigrant and Employee Rights Section and removed "the end of" from the phrase "the first day or employment." Please contact your HLG attorney if you have any questions about the new form, how to do an internal audit, E-Verify or with any other immigration or employment verification questions.
On August 7, 2017, the Ninth Circuit upheld charges against DLS Precision Fab LLC, a now bankrupt sheet metal company, which resulted in $305,000 in penalties for employing unauthorized immigrants. In this decision the court rejecting the company’s arguments that a rogue HR director was to blame. DLS was found to have failed to comply with the INA’s worker verification requirements and employed more than a dozen individuals known to be ineligible to work in the U.S. DLS attributed its failure to properly vet employees on a rogue HR director who, unbeknownst to it, shirked compliance to the point “of literally stuffing the government’s correspondence in a drawer and never responding.” The Court was not persuaded by this argument. The bulk of the charges stem from I-9 violations. I-9 violations are not merely violations when filed but remain continuing violations until DLS is no longer required by law to retain them (three years from the date of hire or one year after termination). As for retaining eligible employees, the clock starts upon termination. DLS was therefore not able to use the statute of limitations as a defense. While these appear to be a pretty blatant violations, it is still a good reminder that properly vetting your employees and maintaining your I-9 records is very important.
Employers Seeking H-1B Visas Should Not Discriminate Against US Workers Warns the U.S. Department of Justice
Yesterday, April 3rd was the first day the USCIS began accepting H-1B visa petitions that are subject to the cap for the next fiscal year (October 1, 2017 to September 30, 2018). The H-1B visa allows U.S. employers to employ temporarily foreign workers in specialty occupations including science and technology. The anti-discrimination provisions of the Immigration and Nationality Act (INA) prohibit employers from discriminating against U.S. workers because of their citizenship or national origin. This prohibition applies to hiring, firing and recruiting or recruiting for a fee. An employer may be found to have violated the INA’s anti-discriminatory prohibitions if they favor H-1B visa holders over U.S. workers. “The Justice Department will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers,” said Acting Assistant Attorney General Tom Wheeler of the Civil Rights Division. “U.S. workers should not be placed in a disfavored status, and the department is wholeheartedly committed to investigating and vigorously prosecuting these claims.” The Immigrant and Employee Rights Section of the division (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices) is responsible for prosecuting violations under these provisions which include citizenship, immigration status and national original discrimination in hiring, firing, recruitment or recruitment for a fee; unfair documentary practices; retaliation; and intimidation. Please contact Hammond Law Group if you have any questions about what may or may not be considered a violation of the INA’s anti-discrimination provisions.
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.