News from the Alliance of Business Immigration Lawyers Vol. 10, No. 2B • February 15, 2014
Headlines:
1. Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid – Among other things, the court noted that the Department of Labor is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers.
2. DOL Administrative Review Board Partly Affirms ALJ’s Decision in H-1B Wage Complaint – The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands in back wages to 29 H-1B workers for various violations.
3. ICE Releases SEVP Guidance on Errors in Denials of STEM OPT Extensions – If a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial.
4. Grand Jury Indicts North Carolina Company for Visa Fraud Scheme – International Labor Management Corporation was indicted for alleged fraud in preparing and submitting petitions on behalf of client companies to the U.S. government for temporary workers under the H-2B visa program and the H-2A agricultural visa program.
5. USCIS Revises Naturalization Application – Applicants may use previous versions of the form until May 5, 2014.
6. New Publications and Items of Interest – New Publications and Items of Interest
7. Member News – Member News
8. Government Agency Links – Government Agency Links
Details:
1. Third Circuit Rules That H-2B Regulation on Minimum Wage Is Valid
The U.S. Court of Appeals for the Third Circuit ruled February 5, 2014, that a Department of Labor (DOL) regulation on the minimum wage required under the H-2B temporary worker visa program was validly promulgated.
The appellants were a group of associations representing employers in nonagricultural industries. Joining them was another group of individuals and organizations representing foreign and U.S. workers affected by the H-2B program who had successfully challenged a predecessor to the current regulation. The appellants argued that the DOL exceeded its authority by enacting the regulation, which governs the calculation of the minimum wage a U.S. employer must offer to recruit foreign workers under the H-2B program. The employers stood to face higher labor costs as a result of the regulation. The District Court granted summary judgment for the DOL and its codefendants (the Secretary of Labor, the Department of Homeland Security (DHS), and the Secretary of Homeland Security).
Among other things, the court noted that the DOL is not required to consider employer hardship but instead must balance the interests of ensuring an adequate labor force with protecting the jobs of U.S. workers. The court also disagreed with appellants’ contention that the DOL must use a four-tier wage methodology from the H-1B program as the prevailing wage calculation mechanism in the H-2B program. The court found the actions of the DOL and DHS reasonable with respect to application of their respective authorities regarding the H-2B program and what constitutes permissible consultation between agencies. The court also noted that the DOL promulgated the wage rule after “reasoned analysis,” which is required. The court noted that the DOL had discussed the 300 comments submitted in an entire section of the final rule.
The related regulations and litigation have a complicated history that is summarized in the Third Circuit’s decision. Among other things, the effective date of the 2011 regulation was moved forward and backward, and its implementation was defunded by Congress. As a result, the DOL fell back on an earlier 2008 rule that a district court had found procedurally invalid. That court had ordered the DOL to vacate the earlier rule and come into compliance. The DOL issued a final interim rule in April 2013, effective immediately, which made some changes to the 2011 rule. Congress later lifted the appropriations ban on the 2011 rule as of January 17, 2014.
The regulation recently declared valid by the Third Circuit was published at 76 Fed. Reg. 3452 (Jan. 19, 2011) (20 C.F.R. § 655.10).
Decision, Louisiana Forestry Association v. Secretary of Labor
Additional litigation continues regarding whether the DOL has the authority to issue supplemental prevailing wage determinations under the 2013 interim final rule.
2. DOL Administrative Review Board Partly Affirms ALJ’s Decision in H-1B Wage Complaint
In a recent case decided by the Department of Labor’s Administrative Review Board (ARB) on January 29, 2014, the ARB affirmed an administrative law judge’s (ALJ) finding that the scope of a Wage and Hour Division investigation initiated in response to a complaint is not limited to the allegations in that complaint. The ARB also affirmed the ALJ’s evidentiary ruling on the availability of pre- and post-judgment interest on awards in H-1B cases. The ARB reversed the ALJ’s finding that discrete violations occurring outside a 12-month period before the filing of a complaint are actionable. The deputy chief administrative appeals judge concurred in part and dissented in part, agreeing with the majority’s ruling in the case of the initial complainant but dissenting from the majority’s ruling in all other respects.
The ARB ordered Greater Missouri Medical Pro-Care Providers, Inc., to pay thousands of dollars in back wages for various violations to 29 H-1B workers. The case started when an H-1B nonimmigrant employee filed a complaint in 2006 alleging that Greater Missouri failed to pay her the required wages under its labor condition application for time off due to a decision by the employer, had illegally made deductions from her wages, and had required her to pay an illegal penalty for stopping work before an agreed-upon date.
3. ICE Releases SEVP Guidance on Errors in Denials of STEM OPT Extensions
U.S. Citizenship and Immigration Services (USCIS) announced on February 6, 2014, that some optional practical training (OPT) science, technology, engineering and math (STEM) extension applications were denied in error. USCIS said they were not adjudicated in accordance with applicable Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) OPT policy guidance. USCIS sent the alert to notify affected designated school officials and to provide instructions.
USCIS said that some OPT STEM extension applications were denied in error because the student applicants intended to work as volunteers or unpaid interns during their extension periods. To prevent this problem from happening again, USCIS’s Service Center Operations (SCOPS) instructed all USCIS Service Centers to follow ICE SEVP’s policy guidance regarding work as a volunteer or unpaid intern.
The alert notes that SEVP’s OPT 2010 policy guidance states that a student may work as a volunteer or unpaid intern for at least 20 hours per week. The alert says that if a student’s OPT STEM application was denied solely on the basis that he or she intended to work as a volunteer or unpaid intern, the student should contact the Service Center that issued the denial by emailing the applicable dedicated student emailbox. The student should provide his or her full name and the USCIS receipt number relating to the denied application. The email addresses are:
California Service Center: [email protected]
Vermont Service Center: [email protected]
Texas Service Center: [email protected]
Nebraska Service Center: [email protected]
4. Grand Jury Indicts North Carolina Company for Visa Fraud Scheme
A grand jury recently indicted International Labor Management Corporation (ILMC) of North Carolina on 41 counts relating to visa fraud. ILMC was in the business of preparing and submitting petitions on behalf of client companies to the U.S. government for temporary workers under the H-2B visa program and the H-2A agricultural visa program.
Among other things, the indictment alleges that the ILMC owners falsely petitioned for and obtained extra H-2B visas beyond the actual needs of their client employers to create pools of extra visas. This pool allowed employers who could not otherwise obtain H-2B visas due to the cap to use them to bring workers into the United States under the pretense that they were going to work for the employer for whom the H-2B visas had been approved, and by allowing ILMC to obtain H-2B visas before the cap was reached using inaccurate start dates, thereby denying such H-2B visas to other employers or competing agents. The ILMC owners then used those workers who entered the United States under false pretenses for other employers or otherwise to benefit themselves. In some cases, they agreed with a client to create fictitious companies for this purpose. An ILMC owner also instructed at least one client employer to obtain temporary workers by falsely claiming that such workers were needed for H-2A agricultural work, to avoid the H-2B cap.
5. USCIS Revises Naturalization Application
As part of its forms improvement initiative, U.S. Citizenship and Immigration Services (USCIS) released a revised Form N-400, Application for Naturalization, on February 4, 2014. The eligibility requirements for naturalization have not changed.
The revised N-400 includes additional questions relating to good moral character and to security, to conform with the Intelligence Reform and Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of 2008; “clearer and more comprehensive” instructions that highlight general eligibility requirements and provide specifics on how to complete each part of the application; and 2D barcode technology at the bottom of each page to enable USCIS to scan data for direct input into USCIS systems.
Applicants may use previous versions of the form until May 5, 2014, at which time USCIS will begin rejecting and returning previous versions of the N-400.
USCIS will hold a stakeholder engagement on February 20, 2014, about the revised form. MORE INFORMATION ON THE TELECONFERENCE.
ANNOUNCEMENT, which includes a link to a related video
INFORMATION ON USCIS’S FORMS IMPROVEMENT INITIATIVE
6. New Publications and Items of Interest
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
7. Member News
Steven Clark addressed the Massachusetts Bar Association on February 6, 2014. The CLE topic was the nuts-and-bolts of EB-5 investor petitions for direct investment or regional centers.
H. Ronald Klasko recently spoke on “EB-5, Where Are We Now?” at the annual meeting of the Mexico City Chapter of the American Immigration Lawyers Association in Bogota, Colombia. Mr. Klasko gave a legislative update on the EB-5 program and reviewed documenting lawful sources of funding, developments in adjudications, and “musts” when dealing with regional centers.
Cyrus Mehta co-authored a new blog entry. “Transmission of American Citizenship through Assisted Reproductive Technology – An Update”
Angelo Paparelli was quoted in a New York Times editorial on February 5, 2014, about Governor Rick Snyder of Michigan’s proposal to attract 50,000 people with advanced degrees or exceptional abilities in the sciences, arts, or business to Detroit to help revive the depressed economy there. Mr. Paparelli, who grew up in Detroit, suggested that states could submit economic revival proposals to vie for a larger share of work-related visas for foreign investors and entrepreneurs.
Mr. Paparelli has announced the 2013 Nation of Immigrators (“IMMI”) awards.
Mr. Paparelli has published a new blog post: “EB-5 Immigration Lawyers Wear Too Many Hats”
Bernard P. Wolfsdorf has published a new blog. “Predictions for the Year of the Horse: 5 Reasons Why the EB-5 Program Will Flourish in 2014“
8. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin