Employment Based Immigration

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).

July 23, 2008

The ‘I-140 Stage’ and the ‘Ability to Pay’

by Kellie N. Lego

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.

June 25, 2008

Extension of Optional Practical Training Program under the E-Verify Program & E-Verify Requirement for Federal Contractors

by Kellie N. Lego

According to U.S. Citizenship & Immigration Services (USCIS), an additional seventeen (17) month Optional Practical Training (“OPT”) extension is available for current OPT F-1 students who have completed a science, technology, engineering, or mathematics degree and accepted employment with an employer enrolled in the E-verify program. Additionally, this extension will benefit students with pending H-1B petitions and change of status requests, as it will enable them to maintain their employment eligibility for the duration of the H-1B processing period. Without this benefit, foreign students on F-1 nonimmigrant status would only be eligible for the normal twelve (12) months of OPT to work for a U.S. employer in a field directly related to their major area of study. This employment eligibility program essentially provides a benefit for students on F-1 status who seek employment with an employer enrolled in E-Verify.

E-Verify Requirement for Federal Contractors

On June 9, 2008, Executive Order 12989 was issued, which declared E-Verify, the electronic employment eligibility verification system that all federal contractors must use. The Executive Order directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use E-Verify to verify the employment eligibility of all persons hired during the contract term, and all persons performing work within the United States on the federal contract. This rule is not final, and is open for public comment at this time. Please refer to the following link for contact information, if you would like to submit a written comment. Written comments must be submitted on or before August 12, 2008.

June 20, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 3 of 3

by Kellie N. Lego

The CSPA protects Derivative children of Employment-Based preference categories

As mentioned in my previous article, new guidelines issued by the USCIS make the CSPA retroactive to petitions filed prior to August 6, 2002. In addition to applying to children of U.S. Citizens and children of permanent residents, the CSPA also applies to children of beneficiaries of employment-based visas. As a derivative, the child of a beneficiary of an I-140 petition (Immigrant Petition for Alien Worker) is eligible for an immigrant visa number at the same time and under the same preference category as his/her parent. Prior to the CSPA, if a child turned twenty-one (21) prior to being issued an immigrant visa or obtaining approval of an adjustment of status application, the child would “age-out” and would lose eligibility for a green card based on his/her parent’s application.

Again, we must calculate the “CSPA age” of the child in order to determine if they qualify for benefits under the CSPA. First, you must determine the age of the child when the petition was filed, and the approximate date the child will be when a visa becomes available (when your priority date becomes current).

June 18, 2008

A Little Guidance on the Child Status Protection Act (“CSPA”) –Part 1 of 3

by Kellie N. Lego

The CSPA as it relates to U.S. citizens filing petitions on behalf of their children.

The CSPA was designed to benefit children who would “age-out” because of processing delays on the part of the U.S. Citizenship and Immigration Services (USCIS) or Department of State. In enacting the CSPA, Congress had the intent to ensure that a child did not lose an immigration benefit merely because the child turned 21 while the government was processing the child’s immigration documentation. Prior guidance issued by the USCIS on August 17, 2004 and June 14, 2006 had limited eligibility of individuals to the CSPA if certain qualifying events occurred prior to August 6, 2002. However, new guidelines recently published by the USCIS remove those limitations.

The CSPA changes who can be considered to be a “child” for the purpose of the issuance of visas by the Department of State, and for purposes of adjustment of status of aliens by USCIS. The Immigration and Nationality Act defines a “child” as someone who is unmarried and under the age of twenty-one. Prior to the passage of the CSPA on August 6, 2002, a child could only benefit from his “child” status if he/she remained a child right up until the date that he obtained an immigrant visa to come to the U.S.

June 13, 2008

Maintaining PERM AUDIT Files

by Kellie N. Lego

It is the employer’s responsibility to maintain an audit file for every PERM application they file on behalf of their employees. As a practical matter, it is important to keep accurate and up-to-date records of all employee supporting documentation, especially when dealing with the PERM process. It is important that all steps in the process are followed precisely. Otherwise, consequences may occur that could ultimately result in supervised recruitment for two years, employer disbarment from the PERM system for two years, or even the closing of the employer’s business. Therefore, by maintaining an audit file for every PERM applicant, the employer is prepared to respond to an audit notice in a timely and efficient manner, and has the evidence to establish that they followed the required procedures correctly.

The key elements of an employer’s audit file should include the following:

1. A copy of the certified labor certification application (ETA FORM 9089)
An employer is required to maintain a copy of the certified application

2. Proof of permanent, full-time employment
An employer must be prepared to document the permanent and full-time nature of the position by furnishing job descriptions and payroll records for the job opportunity involved in the 9089 application– If the job does not exist, the employer must be prepared to show that a change in its business caused the job to be created

3. Notice to the bargaining representative (if applicable)
A copy of the letter and a copy of the 9089 Application form that was sent to the bargaining representative will suffice

4. Documentation of job posting notice
A copy of the posted notice and statement regarding where it was posted, and copies of all the in-house media that were used to distribute notice will be sufficient

5. Proof of job order placement
A copy of the State job order print document will be adequate

6. Documentation regarding bona fide job opportunity (if applicable)
Applies if the employer is a closely held corporation or partnership or if there is a familial relationship between management and the alien, or if the alien is one of a small number of employees

If applicable, documentation consisting of the Articles of Incorporation, partnership agreements, licenses, an organizational chart documenting all positions and relations between workers, the total investment of each individual, and the name of the human resources representative should all be kept within the file

7. Prevailing wage documentation
The State Workforce Agency (‘SWA’) prevailing wage determination printout will suffice; however, if the employer used an alternative wage source to obtain a prevailing wage determination, the employer should retain copies within the file

8. Recruitment documentation consisting of: (three different mediums must be utilized in addition to the two required print ads)
• Print Ads – copies of the newspaper pages in which the advertisements appeared will suffice
– if a professional journal was utilized, a copy of the page in which the advertisement appeared will be adequate

• Job Fairs – a copy of a brochure advertising the fair and/or newspaper advertisements in which the employer is named as a participant in the job fair will be sufficient

• Employer’s Web site – a dated copy of the page from the website that advertises the occupation involved will suffice

• Job Search Web site (other than employer’s)
– a dated copy of the page(s) from one or more website(s) that advertise the occupation involved will be adequate

• On-Campus recruiting – copies of the notification issued or posted by the university’s placement office naming the employer and the date it conducted interviews for employment in the occupation will be sufficient

• Trade or professional organization journals/newspapers – copies of pages of newsletters or trade journals containing advertisements for the occupation involved will suffice

• Private employment firms – copies of contracts between the employer and the private employment firm and copies of advertisements placed by the private employment firm for the occupation involved will be adequate

• Employee referral program with incentives – dated copies of employer notices or memoranda advertising the program and specifying the incentives offered will be sufficient

• Campus placement offices – a copy of the employer’s notice of the job opportunity provided to the campus placement office will suffice

• Ads in local and ethnic newspapers – copies of the newspaper pages in which the advertisements appeared will suffice

• Radio and Television advertisements – a copy of the text of the employer’s advertisement along with a written confirmation from the radio/television station stating when the advertisement was aired
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June 12, 2008

UPDATE: USCIS Offers Premium Processing for I-140s on a Limited Basis

by Kellie N. Lego

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.