Students at at UNNJ lose their visa!

ICE cancels F-1 Student visas

On April 4 and 5, 2016, the Student and Exchange Visitor Program (SEVP) terminated the visa of nonimmigrant students who had enrolled at the University of Northern New Jersey (UNNJ), and the visas of nonimmigrant students who had transferred from UNNJ.

Why?

The students were found to have knowingly participated in visa fraud because they enrolled at UNNJ to obtain an illegal to maintain their F-1 nonimmigrant status.

UNNJ is a school operated by Homeland Security Investigations (HSI) Newark. It was created as a part of an enforcement action that targeted SEVP-certified schools and officials who sought to fraudulently utilize SEVP and the Student and Exchange Visitor Information System (SEVIS) to commit various violations of federal law.

There are approximately 60 students who are affected and who will receive notification of cancellation of their visa.

Students who are terminated because they were currently  or  enrolled before at UNNJ and choose not to file for reinstatement or have applied to USCIS for reinstatement and whose application is denied, must depart the country immediately.

Not Eligible for Transfer

These students are not eligible for to transfer to another SEVP-certified school unless U.S. Citizenship and Immigration Services (USCIS) approves the student for reinstatement following the student’s termination. Students who transferred to another school from UNNJ will also be terminated and their new school will be notified of the cancellation of their visa.

What to do now?

Call SEVP Response Center at 703-603-3400. This number is staffed from 8 a.m. to 6 p.m. (ET), Monday through Friday, except holidays. The SEVP Response Center is closed every Wednesday from 12:45 to 1:30 p.m. ET for system maintenance and testing.

Provide the following information when calling:

  • First and last name
  • SEVIS ID number
  • Address
  • Telephone number where you can be reached
  • E-mail address
  • Current SEVP-certified school

Nalini Mahadevan JD, MBA

Attorney at Law

314-932-7111 office

nsm@mlolaw.us

website: Mlolaw.us

Disclaimer:  Not meant as legal advice. NOT meant to create an attorney client relationship.  Please call an attorney to obtain advice pertaining to your legal situation.

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PERM Plans to Modernize Recruitment Process

The US Department of Labor announced that it is modernizing US worker recruitment for the PERM process.

DOL has not comprehensively examined and modified the permanent labor certification requirements and process since their inception 10 years ago. Over the last 10 years, much has changed in our country’s economy, affecting employers’ demand for workers as well as the availability of a qualified domestic labor force. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the Information Technology and Science fields.

Over time, demands for labor have increased, and surpluses for various types of workers have changed. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the DOL has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.

To respond to change, the DOL is working on new regulations for the following:

  • Options for identifying labor force occupational shortages and surpluses, and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

The objective of the DOL is to align DOL recruitment methods with that of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney St. Louis, Missouri
nsm@mlolaw.us

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The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Copyright 2014. All rights reserved.

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Government Shutdown Affects Employers with Foreign Workers

We sent an alert to our clients a couple of days ago when we felt that the Federal Government shutdown was imminent. We didn’t really expect it to happen but it did! The shutdown is unfortunately affecting US immigration services, so writing about action to be taken or postponed for pending immigration applications became imperative.

The websites of the US Department of Labor (US DOL) are no longer functional because it is considered a non-essential service. For employers, this means that if there is a current or potential employee who has to start, extend or transfer to a new employer, the employer will not be able to file a labor condition application for an H1B visa. The implication is that no application for the H1B visa can be filed with USCIS because that application has to be supported by a certified labor condition application (LCA). In the past, when there was a prolonged outage of the US DOL website, USCIS allowed employers to file with uncertified LCAs. We hope this happens with this shutdown, if it is prolonged.

For employees whose cases are pending audit on a PERM case; or if a prevailing wage determination or Form 9089 (PERM application) is either to be filed, or has been filed or is pending with the US DOL, no action will be issued by the agency until the shutdown has been terminated.

USCIS is functional because it is a fee-for-service agency. Biometrics collection is used for many immigrant applications, as well as for re-entry permits required for multinational employees who have a green card through employment but are currently stationed overseas. Biometric services for employees are also still being collected.

US Department of State consulates are currently functional, processing visa stamps and interviews. These services are supported by a mix of fees and federal budget allocation: if the shutdown is prolonged, or if there is a budgetary crisis, then there may be a suspension of services at the consulates for both US citizens and non-citizen consular services. The budgetary crisis could impact both employment-based and other categories of visa issuance, including visitor and business visas. If business travelers want to attend or plan to attend meetings and conferences in the US, please plan to obtain a visa while consular services are still available.

The Social Security Administration is open with limited service; issue of Social Security cards has been suspended. Hence, new visa-based employees will be unable to obtain new social security numbers, which could impact I-9 forms. Although collection of social security numbers is optional, if the employer is an E-verify employer, the employer is required to collect a social security number for work authorization verification. Certain federal and state contractors are also mandated to collect this information. To alleviate this problem, the 3-day rule for E-verify is suspended for those cases affected by the shutdown. Employers may not take adverse action against employees because of the employee’s E-verify interim status.

Wage payments to some new non-immigrants may be a problem because of the non-availability of the social security number. New J non-immigrant visa holders who cannot obtain social security numbers should approach their sponsoring agency for direction.

E-verify is unavailable during the shutdown. Consequently, USCIS, which administers the program, will not be issuing non-confirmation letters (TNC), and employers will be unable to verify work authorization of new employees. Current time to process TNCs has been extended; but the obligation to collect, maintain and process Form I-9 continues as an employer mandate.

Border security is an essential service – there will be no shutdown of services at the border, but travelers are expected to face slowdowns in screening and higher security.

US Passport services, which are a fee-for-service program, are not affected by the slowdown. Of course the severity of the impact will depend on the length of the shutdown. We will post updates as they become available.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2013. All rights reserved.

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Planning For the New Year: Form I-9 and E-Verify

With the new year approaching, employers can make some changes and improvements to processing and maintaining Form I-9s. There are Form I-9 best practices that employers should follow to avoid being fined by ICE in an audit. The following are methods to ensure that you, as an employer, are complying with Form I-9 guidelines that have been implemented by USCIS and enforced by ICE. Please also see my Form I-9 series.
  1. Train your team in-house on how to complete I-9 forms and use E-verify successfully.
  2. Don’t be creative while completing forms. If, for instance, the HR specialist forgot to date the form, or the employee did not fill in Section 1 fully — don’t attempt to back-date the form and ask to the employee to complete Section 1. There is always someone who knows the situation and is watching. You could be threatened with punishment, or other employees could rat you out.
  3. The days of the wild, wild west are gone. Today requires a culture of compliance with the rules and laws. It is too expensive for employers and companies to do otherwise.
  4. Hire outside counsel to conduct a year-end audit of all the new forms created since the beginning of the year. At a recent immigration conference, I heard that more than 85% of I-9 forms are filled incorrectly, which means that self-audit is probably not a good idea. Having another employee conduct an audit can be a tricky situation because he/she may not want to point out a superior’s mistakes. The best way is to engage outside counsel to perform the audit; this audit can be part of a wage and hour audit.
  5. Brainstorm about your on-boarding policies and your “exit” interviews. Review policies for document examination; and recording and re-verification of documents for various visa-based and non-visa-based employees. Aim for consistent employee procedures — this means creating a handbook for procedures. Ensure your employees review the handbook before they attempt to examine and record documents on the I-9.
  6. Beware of audits by other federal agencies — they share information and are looking to collect fines. A wage and hour audit can turn into an I-9 and E-verify audit nightmare.
  7. Audits take time and are an unproductive task: they cost company money and employee time, and lead to lost profits. Take the time to understand the I-9 process.
  8. Audits ruin company reputations — names of companies that are audited are made public on federal websites. ICE, OSC and DOL publish announcements of audits.   Sushi Zushi, a San Antonio restaurant, lost workers and shut down after an announcement of an ICE audit. Employees left in droves; without employees, the restaurant had to shut down 8 locations.
  9. The new I-9 will create new challenges. Allocate a budget for training and compliance.
  10. Reduce liability by purging old I-9s.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

The information is not meant to create a client-attorney relationship. This blog is for informational purposes only, and is not a substitute for legal advice. Situations may differ based on the facts.

Tara Mahadevan

Copyright 2012. All rights reserved.

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New PERM Issues for Employers – Interviewing US applicants

Consider these facts: ABC company has a valuable employee for whom they have filed a PERM application with the Department of Labor. The job requirements are a Master’s degree with a very specific set of skills.

Select International Inc.

In the matter of Select International, Inc., a decision issued by Board of Alien Labor Certification Appeals (BALCA) on 19 September 2012, the board held that if a US worker submits a broad resume in response to an advertisement for a job opening, the employer must not only review the application, but must also provide in-depth reasoning as to why the US worker does not meet the minimum experience requirements for the job advertised.

Select International advertised a position for an industrial/organizational psychologist. The company stated that they would accept any suitable combination of experience, training and education (Kellogg language). Resumes from three potentially qualified applicants were rejected for not meeting the employer’s minimum requirements. Select International did not interview the applicants or send letters of rejection. The employer in particular rejected Avi Avigdor, a US worker who applied for the job opportunity. BALCA denied labor certification because no further consideration was given to his resume beyond a review.

To conduct a recruitment in good faith, an employer “must take steps to ensure that it has lawful job related reasons for rejecting US applicants, and not stop short of fully investigating an applicants qualifications” (E. Tenn. State Univ.). No US worker should be rejected for lacking the skills necessary to perform the duties involved if they are capable of acquiring the skills during a reasonable period of job training, and there is no lawful job-related reason for rejecting the US worker.

Select International stated that the job opportunity was for a person with a masters degree in industrial/organizational psychology and required 36 months of experience, and that coursework must include personnel selection; employment law; legal issues related thereto; candidate testing and selection; job analysis; development of job candidate selection tools; and advanced statistical analysis using statistical methodologies. Select International also state in Form 9089 that it would accept any suitable combination of education, training or experience.

The job required development of new assessment tools and techniques; in-depth statistical analysis; detailed reports; and recommendations. Select International stated that Mr. Avigdor did not meet minimum experience requirements because his 47 months of experience was not related to the job duties to be performed in the  position offered. The company also noted that none of the positions held by Mr. Avigdor involved skills listed on the PERM application, nor did he have the experience to perform the core duties required by the job. Therefore, he did not have the combination of educational training and experience to qualify for the position.

The PERM certification was denied on the basis that Mr. Avigdor’s credentials were not investigated fully.

What is an employer to do?

Given the facts of this case, perhaps the best course of action for an employer is to interview all suitable applicants and to document job-related reasons for rejection. Kellogg language should be used sparingly on PERM applications, unless employers are willing to accept any suitable combination of education, training and experience from US job applicants with broad resumes.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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How Employers can Reduce Audit in PERM Filings for Roving, Telecommuting and Traveling Employees

The tech industry is facing many challenges today, notably denials from the Department of Labor (DOL) based on very little understanding of how the industry works. Most large employers in the sector are not the ‘job shops’ that USCIS fears; and DOL is convinced the tech industry is engaged in fraud of some kind, or is somehow interested in recruiting foreign workers when willing and able US workers are available!

US employers in this sector pay a premium in governmental application costs and legal fees because they are unable to find a suitable worker in the advertised job. In fact, most recruiters I speak to would prefer to hire locally rather than internationally.

Both USCIS and DOL target employers who file for an employee with job duties involving roving, telecommuting or travelling; USCIS has recently issued guidance on roving employees placed at client worksites, in the H-1b visa context. DOL continues to audit and issue denials for roving, travelling or telecommuting positions. Current audits require employers to define employees’ positions as either national or regional roving without a residential requirement, or roving with a residential requirement. Additionally, DOL has expressed concern that these jobs may not be bona fide opportunities for the positions advertised at the intended place of hire; and, in the case of roving employees with no fixed ‘intended area of employment’, the location chosen to advertise the job opportunity and the wage may be artificial and misrepresented by the employer.

Where to Advertise for Roving Employees

In the past few years, DOL has audited and denied applications where the residential address of the employee does not match the location of employment. DOL decided that this position was for a telecommuting employee, a benefit the employer did not disclose in the advertisement for the position and therefore not disclosed to an eligible US applicant, but offered to the beneficiary as a benefit. A PERM application can also be denied based on job advertisements in the incorrect Metropolitan Statistical Area (MSA). The employer advertised the job where the client worksites were located, instead of the MSA where the employer’s headquarters was located.

In Paradigm Infotech, Inc (BALCA, June, 2007), the employer advertised the roving position in Erie, Pennsylvania where the client worksite was located, instead of the company headquarters. To reach the PERM denial, DOL conducted research on the employer. DOL ascertained that the employer’s headquarters was in Columbia, Maryland as confirmed by employer’s tax records and DOL interviews with employees. DOL also performed site visits to the Erie location of the employer’s branch to ascertain that sufficient office space existed, and parking space was available for the number of employees who were supposed to work there, in accordance with employer’s documentation filed with Board of Alien Labor Certification Appeals (BALCA). Based on short term contracts with client companies, inadequate office space at Erie, and payroll records that confirmed that employees worked at different locations, PERM labor certification was denied by DOL and the denial was upheld by BALCA. BALCA reasoned that the employer needed to test the labor market at the place where the alien was working, and since this was a roving employee and that geographical area of the labor market was unknown, the job market to be tested for PERM purposes was located at the employer’s headquarters.

Following Paradigm, employers with large business units away from company headquarters should also advertise at headquarters location. This is confirmed by the Barbara Farmers Memo: ETA Field Memorandum 48-94§10, published by DOL in 1994 and still followed by DOL.

Prevailing Wage Issues

Employers should also file to obtain prevailing wage determinations from DOL in all the intended areas of potential work sites for the foreign worker. Future locations can be determined from itineraries and statement of work signed with the end client.

Employers with International Locations

In August 2012, BALCA upheld that advertisements in the PERM context also include ‘travel requirements’. The employer in M-IL.L.C., filed a PERM for an employee who was required to travel to international locations as part of the job requirement. This fact was listed on the PERM application Form 9089 and the prevailing wage determination, but not listed on the advertisement for the job opening. 20 C.F.R. § 656.17(f)(4) states, “Advertisements placed in newspapers of general circulation or in professional journals before filing the Application for Permanent Employment Certification must… indicate the geographic area of employment with enough specificity to apprise applicants of any travel requirements and where applicants will likely have to reside to perform the job opportunity.” The employer’s advertisements did not include the travel requirement. Denial was based on the fact that travel requirements listed on the PERM application and the prevailing wage determination was not matched by the advertisement for the position.

Conclusion

While we cannot with certainty expect every PERM filing with travel requirements to be audited by DOL, we must certainly file like that is a very real possibility. Any filing with the DOL is subject to audit, even if in the past those very same requirements were certified by DOL. The safest course in our uncertain climate is to match information on the prevailing wage with the PERM form, and the employer’s advertisement requirements for the position advertised.

See you in my next blog.

Nalini S Mahadevan, JD, MBA
Immigration Attorney
Lowenbaum Partnership, LLC
St. Louis, Missouri

Tara Mahadevan

Copyright 2012. All rights reserved.

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