The End of Labor Certification Substitutions
In the pre-amble to the PERM rule, the Department of Labor (DOL) indicated that it plans to end the practice of allowing the substitution of an employee into an unused approved labor certification case that originally had been filed on behalf of a different employee. At a recent conference of immigration attorneys, William Carlson, the DOL Division Chief of the Labor Certification Unit, made a strong indication that this regulatory change could come as soon as the end of the summer. While there would most likely be at least 30 days advanced notice and any cases filed before the cut-off would most likely be processed under the current rules, companies may want to use any extra approved LC cases as soon as possible since this is an option that will likely go away in the near future. While one never knows how quickly or slowly the DOL will move, they need to make some technical corrections to the PERM rule soon, at which time they would have a convenient opportunity to address other housekeeping measures such as ending the LC substitution rule.
The reason for moving sooner rather than later to use the unused LC cases is that a company will likely find that very few employees are actually able to use them, depending on how many special skills are listed in the case. Under the current rule, the substituted employee would need to have obtained all of the listed skills on the LC case both before his/ her start date at the company AND prior to the date the LC case was filed, which was likely at least 4 years ago. Also, even if an employee appears to be qualified to use the approved LC, they may need to obtain reference letters from previous employers to confirm their qualifications, which can take several weeks or longer.
The Department of Labor established two BRC within the last 8 months in order to handle the processing of pre-PERM labor certification cases, which are those cases filed prior to Friday, March 25, 2005. In working to process the backlogged cases, the BRCs erroneousely closed approximately 700 cases which they believed had been abandoned. After the BRCs became aware of their mistake, procedures were put in place to reopen these cases. It is important for employers to understand that if it receives a letter requesting a confirmation that a pending LC case is still active, a response must be submitted within the required time for response, which is normally 45 days. Also, if a denial is receive for a case which has not been abandoned, it is important for the company to contact its immigration counsel as soon as possible in order to have the case administratively reopened.
The DOL has been sending e-mails to employers pursuant to cases filed under its new PERM program. These e-mails must be responded to within 7 days to avoid the case being deemed abandoned. The e-mail normally has four questions, approximately as follows:
1.) Does the sponsored employee currently work for the employer?
2.) Is the employer aware that a PERM application has been filed on its behalf?
3.) Is there currently an opening for the sponsored position?
4.) Was the recruitment for the sponsored position conducted using the title listed on the application form?
These e-mails are normally sent the Company representative listed as the case signer. Given the short response time, this person may want to make a habit of checking his or her spam filter and also having someone else in the office checking the filter when he/ she is out of the office or on vacation. As always, it is strongly recommended that the Company contact its immigration attorney upon receipt of an e-mail or any other contact from the U.S. Department of Labor.
The DOL has also been calling employers to request the information noted in the 4 questions listed above. In one instance, the human resources contact person asked to include the Company’s immigration counsel in a phone conference with the DOL. The caller from the DOL promptly hung-up the phone. While one may chuckle at the DOL’s antics, the Company’s right to obtain legal counsel on its immigration matters should be taken seriously. The new labor certification rules are highly technical and complex. An attorney’s ability to correct a misunderstanding or misstatement of even a minor case detail after the fact may be severely limited, or even impossible. Thus, requests for ANY case related information from the DOL should not be responded to without first consulting with the Company’s immigration counsel. Should your company receive such a call, you should take the caller’s name and telephone number and offer to call him or her back in a joint call with the Company’s attorney.
Under the new PERM program, employers are required to post the job opening for the case with the state workforce agency for at least 30 days. In California, this would be through the Employment Development Department (EDD) on its CalJOBS website. The DOL also has its own website, called America’s Job Bank (AJB). The AJB has been programmed to mine data from the state website and post the jobs on AJB. Thus, an employer may receive resumes from an unanticipated source. Nonetheless, any resume received during the open recruitment period must be considered for the proposed position. On a positive note, it may be possible to count the use of the AJB as an additional source of recruitment if a job order also appeared on the State’s website.
Forms I-9 are the documents completed by employers in order to confirm an employee’s ability to work legally in the U.S. In most cases, enforcement is primarily conducted by the immigration service. More recently, however, private plantiffs have begun to seek penalties for I-9 violations under the RICO states. Currently, we are aware of 4 such pending cases, including the case found here.
Regarding liability for the immigration violations of sub-contractors, many companies may be familiar with the Walmart case, in which the company was found to have knowingly facilitated unauthorized employment through its subcontractors. This action cost Walmart $11 million in government imposed penalties, $80 million in public relations damage control in addition to legal fees. The use of subcontractors is a growing practice which should be pursued carefully. In preparing subcontracting agreements, it may be appropriate for companies to include language confirming that the subcontractor will comply with the 1986 Immigration Reform and Control Act and that the subcontractor will endemnify the company for any costs incurred as a result of the subcontractor’s immigration law violations. While it is important to encourage subcontractor compliance, companies should also be careful to maintain an arm’s length relationship with the subcontractor, as companies that seek to audit or review the I-9 forms of a subcontractor or oversee its hiring practices may impute liability to themselves for I-9 violations committed by the subcontractor.
While employers can be penalized for incorrectly completing the Form I-9, they should also be aware that liability can be incurred for discriminating by requiring individuals to provide additional documents beyond those required by the Form I-9. For example, many employers are not aware that an Asylee who present an expired Employment Authorization Document is legally authorized to work in the U.S. [8 CFR Section 274a.12(a)(5).] A refusal to accept such a document could be pursued as a violation. Also, employers may encounter problems if they require all employees to produce the same specific document or documents, such as requiring a driver’s license and social security card from all employees. Instead of asking for specific documents, the appropriate approach is to give the list of acceptable documents to the employee and to ask them to provide one item from List A, or an item from Lists B and C.
The government has very broad enforcement powers in these areas. U.S. attorneys have the ability to freeze all business assets AND personal assets of the business owners over an alleged violation, even when there has not yet been a conviction. In the past, this has sometimes been used as a way of squeezing companies into a settlement. Forms I-9 are important and companies should have policies in place for correctly completing the Form I-9 and for reviewing and auditing its records from time to time. One way of minimizing exposure is to purge those Forms I-9 which the company is no longer required to keep. Companies may purge I-9 Forms for employees who are no longer employed 3 years after the employee’s initial hire date or 1 year from their last day of employment, whichever is later.
H-1B visas are limited to a set number each year. Once all of the visas are used, no new visas can be requested until 6 months prior to the start of the next fiscal year, which is October 1, 2006. The USCIS has recently announced that they have counted approximately 8,300 H-1B cases of the allotted 20,000 for FY2005 towards the special quota for persons who have completed a US Master’s degree or higher. They have counted approximately 27,300 petitions towards the FY2006 regular H-1B quota of 58,200.