BALCA Decisions on PERM Labor Certification Applications

February 17th, 2011

Recently, BALCA has decided a number of cases clarifying regulations surrounding the PERM labor certification application.  Such case law is helpful in providing clear instructions to the otherwise general guidelines provided in the Code of Federal Regulations, the latter of which has created guesswork for immigration attorneys and employers attempting to comply with the plethora of PERM rules.  The following is a summary of these cases from American Immigration Lawyers Association (AILA) website (Infonet):
 
1. Web ads:  BALCA found that the employer’s job search web advertisement met the requirements of 20 CFR §656.17(f) where the search results listed the employer as “confidential” but the name of the employer was disclosed in the advertisement itself. (Matter of Dr. Deza, 2/11/11)
2. Job order:  BALCA upheld the denial where the SWA job order contained a requirement not included on the ETA 9089, reasoning that a job order is the functional equivalent of a newspaper ad and is subject to 20 CFR §656.17(f)(7). (Matter of Hayward Unified School District, 2/10/11)
3. Application without alien’s signature:  BALCA affirmed the Certifying Officer’s denial and rejected the employer’s argument that he was forced to submit the application without the alien’s signature because the alien currently works in a rural region with limited mail service.
4. Recruitment report & employee referral program:  BALCA found that the recruitment report, showing that more than 90% of the applications received came from the employee referral program (ERP), was adequate documentation of the ERP as a method of recruitment notwithstanding the lack of a date on the notice of the program.
5. Standard for employee referral programs:  For employee referral programs, an employer must document 1) the program offers incentives to employees for referral; 2) the program was in effect during the recruitment period; and 3) the employees were on notice of the job opening. (Matter of Sanmina-Sci, 1/19/11)
6. Prevailing wage determination outside the time period:  Where the employer lost the original prevailing wage determination (PWD), BALCA concluded that a new PWD obtained outside the applicable time period does not cure the error of failure to retain documentation under 20 CFR §656.10(f). (Matter of Apollo Consulting, 1/12/11)
7. Evidence of website recruitment:  BALCA upheld the CO’s denial, finding that the website print-out did not comply with the regulation requiring dated copies of the posting, and that the statement of the company official did not comply with the format specified in the FAQ. (Matter of EZChip, 1/12/11).  BALCA held that where the snapshots from the website are not available, the employer may submit a snapshot from one day along with an affidavit evidencing the period of posting of the website ad and containing a clear statement that the affidavit is from an official within the employer’s organization responsible for the posting of such occupations on the website. 

8.  SWA Job Order:  BALCA remanded the case for certification, finding that 20 CFR §656.17(e)(2) only calls for “placement” of an SWA job order, and that the CO’s request for documentation that the job order was actually run was unreasonable. (Matter of Mandy Donuts, 1/7/11)
9.  Application of HealthCare of America:  BALCA held that the CO erred in refusing to consider evidence of website postings submitted with the employer’s request for reconsideration where the documents were held by the employer under the PERM record-keeping provisions. (Matter of Hawthorne Suites, 1/12/11)

It is clear that BALCA is generally providing an expansive and liberal attitude toward the PERM regulations, in keeping with the spirit of Healthcare of America, which places substance over procedure and does not allow the DOL to deny certification for minor errors that don’t affect the outcome of the recruitment.  This is certainly a welcome development, along with the speed of processing of recent PERM labor certifications.  It’s quite ironic that in this sagging economy, the DOL is not auditing more cases and demanding to see recruitment results, but let’s not look the gift horse in the mouth!

DHS Announces Greece as Member of Visa Waiver Program

March 10th, 2010

Department of Homeland Security Secretary Janet Napolitano announced today that Greece is now a member of the Visa Waiver Program.  The Visa Waiver Program (VWP) was established as a pilot program in 1986 to eliminate unnecessary barriers to travel to the US.  In October 2000 it became a permanent feature of US immigration law and now more than 35 countries are members.  The key advantage to VWP is that citizens of member countries do not need to secure a visa to the US so long as they are coming to visit for no more than 90 days.  However, they will need to obtain Elecronic System Travel Authorization (ESTA) through a web-based system.  Member countries of the VWP must satisfy stringent security requirements, such as security-related data sharing between the member and the US, timely reporting of lost or stolen passports and the maintenance of high counter terrorism, law enforcement and border control standards.

DHS Rescinds Safe-Harbor Procedures for No-Match Letters

September 1st, 2009

The Department of Homeland Security (DHS) has proposed to amend its regulations by rescinding its safe-harbor procedures for employers who receive a no-match letter, which were originally promulgated on August 15, 2007, and October 28, 2008.  According to the proposed rule in Federal Register: August 19, 2009 (Volume 74, Number 159)][Page 41801-41805]: 

“Implementation of the 2007 final rule was preliminarily enjoined by the United States District Court for the Northern District of California on October 10, 2007. After further review, DHS has determined to focus its enforcement efforts relating to the employment of aliens not authorized to work in the United States on increased compliance through improved verification, including participation in E-Verify, ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.”

No-match letters result when employers’ W-2 information does not match Social Security Administration records.  According to the Federal Register discussed above, “Employers annually send the Social Security Administration (SSA) millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number (SSN) does not match SSA records. In some of these cases, SSA sends a letter, such as an “Employer Correction Request,” that informs the employer of the mismatch. The letter is commonly referred to as an employer “no-match letter.” There can be many causes for a no-match, including clerical error and name changes. One potential cause may be the submission of information for an alien who is not authorized to work in the United States and who may be using a false SSN or a SSN assigned to someone else. Such a letter may be one indicator to an employer that one of its employees may be an unauthorized alien.”[[Page 41802]]

The proposed rule describes a similar process that ICE undertakes after it has inspected an employer’s Employment Eligibility Verification forms (Forms I-9) during an investigation audit and after unsuccessfully attempting to confirm, in agency records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person.

The FR continues:  “Over the years, employers have inquired of the former Immigration and Naturalization Service, and now DHS, whether receipt of a no-match letter constitutes constructive knowledge on the part of the employer that he or she may have hired an alien who is not authorized to work in the United States. On August 15, 2007, DHS issued a rule describing the legal obligations of an employer following receipt of a no-match letter from SSA or a letter from DHS regarding employment verification forms. See 72 FR 45611. The rule also established “safe-harbor” procedures for employers receiving no-match letters.”

The proposed rule then concludes:  “DHS has determined that improvements in U.S. Citizenship and Immigration Services’ (USCIS) electronic employment verification system (E-Verify), along with other DHS programs, provide better tools for employers to reduce incidences of unauthorized employment and to better detect and deter the use of fraudulent identity documents by employees. As discussed below, DHS therefore has concluded that rescinding the August 2007 No-Match Rule and 2008 Supplemental Final Rule will better achieve DHS’s regulatory and enforcement goals.”

DHS’s rescission of the safe-harbor procedures for employers is certainly welcome news, since it would have deemed employers who did not follow the safe-harbor rules to have constructive knowledge of employing an individual without authorization, and thereby subject them to possible criminal prosecution.  These safe-harbor procedures were problematic in that they did not take into account errors in the DHS and SSA database that could not be resolved within the time period granted under the procedures. 

However, the alternative that the government has chosen is not ideal.  It is relying on an electronic system that still has defects.  Furthermore, without comprehensive immigration reform, employers will be penalized for hiring necessary foreign workers.  Let’s hope that this is the first step towards legalization of the millions of undocumented workers who are crucial to our economy and deserve legal status in the US.

USCIS Revises Form I-9

December 15th, 2008

On December 12, 2008, USCIS announced that it had submitted interim final rules to the Federal Register to streamline Form I-9.  USCIS’s announcement states that the rule narrows the list of acceptable identity documents and excludes expired documents as acceptable forms of identification. USCIS’s reasoning is that a broader “document list makes it more difficult for employers to verify valid and acceptable forms and single out false documents compromising the effectiveness and security of the Form I-9 process.”

In particular, the rule eliminates Forms I-688, I-688A, and I-688B (Temporary Resident Card and older versions of the Employment Authorization Card/Document) from List A. These cards are no longer issued and any such cards would have expired by now.  A variety of other miscellaneous changes are also made by the rule. Employers must complete Form I-9 for all new hires to verify their identity and work authorization.  There are three lists of documents:  List A are identity and work authorization documents; List B are only identity documents and List C are only work authorization documents.

USCIS concludes with the following instructions:

“Employers must use the revised Form I-9 for all new hires and to reverify any employee with expiring employment authorization beginning 45 days after publication in the Federal Register. The interim final rule is available at www.uscis.gov and was submitted to the Federal Register on Dec. 11, 2008. The Handbook for Employers, Instructions for Completing the Form I-9 (M-274) will be updated to reflect these changes and will be available on the USCIS website in the near future. The current version of the Form I-9 (dated 06/05/2007) will no longer be valid as of 45 days after publication in the Federal Register. The interim final rule and an informational copy of the revised Form I-9 will be available for public comment at www.regulations.gov for 45 days after publication in the Federal Register

Federal Contractors Must Use E-Verify

June 10th, 2008

The Department of Homeland Security (DHS) has designated the free, online employment eligibility verification system, E-Verify, as the electronic employment eligibility verification system that all federal contractors must use, as required by Executive Order 12989.

In particular, Executive Order 12989 directs all federal departments and agencies to require contractors, as a condition of each future federal contract, to agree to use an electronic employment eligibility verification system designated by DHS to verify the employment eligibility of all persons performing work within the United States on the federal contract.

According to ilw.com:  “More than 69,000 employers currently rely on E-Verify to determine that their new hires are authorized to work in the United States. Employers have run more than 4 million employment verification queries so far in fiscal year 2008. Of those queries, 99.5 percent of qualified employees are cleared automatically by E-Verify.”

Mandatory E-Verify is Blasted as Overburdening SSA

May 7th, 2008

Today, the US House heard testimony on legislation to require all employers to participate in E-Verify, the federal electronic employment verification system that allows an employer to verify an employee’s work authorization online.  The system is notorious for its many flaws and today representatives and witnesses voiced concern that the law would overtax the Social Security Administration (SSA) when it is trying to reduce the backlog of disabilitiy claims. 

The following is a statement from MALDEF:  “MALDEF strongly supports fixing this nation’s broken immigration system, but forcing a deeply flawed system upon an unstable economy is not the answer. A mandatory EEVS will not only impose unnecessary financial burdens upon U.S. businesses, it will lead to unnecessary and unlawful terminations when employers receive tentative non-confirmation reports from the government and they or their employees do not complete the process. Further, EEVS will result in discrimination by employers who choose to not comply with the program. Additionally, a mandatory EEVS will drive the undocumented into an underground labor force without legal protections which will affect all U.S. workers and harm businesses that comply with the law. Recognizing the dangers that come with a mandatory EEVS which will increase discrimination against Latinos and other national origin minorities, present burdensome costs to businesses, and threaten the jobs of nearly 13 million native-born U.S. citizens, Congress should reject the pending legislation.”

According to Workforce Management, an alternative to mandatory E-Verify is the New Employee Verification Act, sponsored by Rep. Sam Johnson, R-Texas. Johnson’s legislation would eliminate the current I-9 process and require that companies submit new-hire information electronically to the Social Security Administration through a child-support enforcement system that about 90 percent of U.S. employers use.

According to Workforce Management’s online article of May 6, 2008:  “Proponents of the Johnson bill say E-Verify is inefficient, prone to error and incapable of detecting identity fraud. The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management, criticizes E-Verify for relying on the Social Security database, which has a 4.1 percent error rate and could mistakenly declare millions of people ineligible for employment.

The Johnson measure would address such problems through an appropriation that would clean up the Social Security database before the verification system goes into effect, according to Mike Aitken, SHRM director of government affairs. The bill also provides a safe harbor for employers who use the system, reduces the number of identification documents for new hires from 25 to four and allows people to put additional protections on their Social Security numbers.”

Coalition Opposes SSA No-Match Rules

April 25th, 2008

The Low Wage Immigrant Worker Coalition (LWIW) has filed the following comments in the Federal Register in opposition to the recently published Social Security no-match rule published by US DHS:

“The LWIW Coalition opposes the implementation of the DHS rule on the following grounds: the rule does not address the serious issues that were raised by the court in its order granting the preliminary injunction in AFL-CIO, et al. v. Chertoff, et al., No. 07-4472-CRB (N.D. Cal. filed on Aug. 29, 2007); DHS has failed to demonstrate that the Social Security Administration (SSA) no-match letter is an effective immigration enforcement tool; hundreds of thousands of lawfully authorized workers will lose their jobs; the SSA will be overburdened by the rule; and the rule will have a detrimental impact on the economy.”

USCIS Announces Date of Transition to New Form I-9

November 26th, 2007

USCIS has announced that employers must use the new Employment Eligibility Verification Form I-9 no later than December 26, 2007.  On November 7, 2002, USCIS announced the availability of the revised form, which has a revision date of June 5, 2007.  Employers must complete the Form I-9 for all new hires.  Employers that fail to use the revised form by December 26th will be subject to penalties.  Instructions on completing the form can be found at http://www.uscis.gov/.

USDHS Launches New Online Employment Verification System

September 27th, 2007

The US Department of Homeland Security (USDHS) upgraded E-Verify (formerly Basic Pilot), its internet-based system that helps employers screen for illegal workers while hiring.  According to the website Government Executive.com, approximately 23,000 employers nationwide participate in E-Verify, a voluntary employment eligibility verification program. Through the program, employers can check the immigration status of newly hired workers by matching the information they present against the databases of the Social Security Administration and Homeland Security.

All new hires must present identification and work authorization documentation to the employer through the I-9 process.  There is a list of acceptable documents on the Form I-9.  The upgraded E-Verify allows employers to compare photos on green cards and employment authorization documents with the photos in DHS’s database, which were stored when the documents were created. If the photos don’t match, it is probable that the documents are fraudulent.

The Illinois legislature recently prohibited employers from participating in the E-Verify program, claiming that verification takes too long and is too riddled with flaws, potentially causing employers to discriminate against employees.