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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Part VII: Penalties

This is Part VII of a blog series for employers to avoid audit by ICE. After the employer receives a notice from ICE, which details whether the employer has been found in violation, then ICE will determine the employer‘s penalties.

The following are the most common notices:

Notice of Inspection Results
Notice of Suspect Documents
Notice of Discrepancies
Notice of Technical or Procedural Failures
Warning Notice
Notice of Intent to Fine
Final Order
Notice of Hearing
Determination of Recommended Fine

Find that each type of notice is hyperlinked and explained in further detail.

There are three different types of violations that an employer could be found guilty of: civil fines and criminal penalties for violation for Form I-9 laws; ‘knowing hire’ and ‘continuing to employ’ violations; and substantive and uncorrected technical violations.

Employers who have ‘knowingly hire’ or ‘continuing to employ’ violations will be forced to stop unlawful activity and may be fined. ICE will divide the number of both violations by the number of employees with misfiled Forms I-9, and obtain a violation percentage.

In the case of technical violations, ICE will do the same in order to obtain a violation percentage.

The violation percentage gives a base fine amount depending on whether this is a First Tier (first time violator), Second Tier (second time violator), or Third Tier (third time violator) case.

In our very own city, St. Louis, J&J Industrial Supply, Inc. was found at fault for employing illegal workers after an inspection by ICE‘s Homeland Security Investigations (HSI). The company pled guilty to knowingly hiring multiple illegal immigrants, and was charged with a $150,000 penalty, a year of probation, and forfeiting a company car. The monetary fine was equal to the profit J&J made during the 12-month period that illegal immigrants were on the company payroll.

J&J Industrial Supply was initially caught because a driver of the (forfeited) company car was caught speeding. The car was pulled over by the police and found that an illegal alien employee was driving. ICE was immediately called. Under Missouri Statute 577.675.1, it is “unlawful for any person to knowingly transport, move, or attempt to transport in the state of Missouri any illegal alien who is not lawfully present in the United States…for purposes of employment.” Doing so will result in prison time, a monetary fine, or both.

In another midwest town, Springfield, IL, five employees from La Fiesta Mexican Restaurant were criminally charged. Three were charged with abuse of fraudulent employment eligibility records; the other two were charged with illegally reentering the US after having been previously deported. If found guilty, the penalty for misusing false documents is up to five years in prison; the penalty for reentering the US after deportation is 20 years in prison and a $250,000 fine. Not only will the unauthorized workers be charged, but the owners can also be charged in civil and criminal indictments, and are also liable to fines.

In San Diego, California, The French Gourmet, Inc. was sentenced for charges of knowingly hiring illegal workers after a four year inspection by ICE‘s HSI. The company was ordered to forfeit $109,200 in profits made during the year in which illegal workers were employed, and ordered to pay $277,375 for its employment of illegal aliens. The company’s owner was also sentenced to five years of probation based on these ‘knowingly hiring’ violations.

Click on the different types of violations, which are hyperlinked, to find charts of employment percentages and fines.

Next Week : Part VIII: How can employers protect themselves from discrimination?

Part IX: Best Practices

Part X: Managing I-9 in Mergers and Acquisitions

Part XI: Correcting I-9

Part XII: Storing/Retaining I-9

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

Tara Mahadevan

Copyright 2012.  All rights reserved.

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Google+

My daughter sent me an invitation to Google+. At first glance it seems to be a mixture of Facebook and LinkedIn, and you can post updates like twitter. I added photos from Picasa and made them public. I separated my friends into acquaintances and close friends with whom I hang out with every weekend. I also separated other ‘friend’ groups, and my family to ‘near and dear’ and extended family.  resumably I can send targeted comments and have different sharing settings.

Google+ says it is a work in progress and that like gmail, it is being rolled out slowly. I was able to upload my pictures from Picasa and photos from my album very easily. But I was a little wary of sharing my Picasa photos or making them public.

Get this: I can video conference with 10 friends on Google+. It is called ‘Hangout’. All my google services are being loosely connected together in one spot. I discovered one of my friends had 42 friends already and her friends became my friends! No asking permission.

I also added topics of interest (Sparks) to my profile. Easy! Just searched and voila, added! Now I get streams of info on topics such as gardening, immigration law and news.

The groups called circles means more privacy than Facebook, where everything I say is sent to my friends and friends of friends. So I would manage the circles very carefully. I never forget that the internet is forever.

See you in my next blog.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2011. All rights reserved.

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Getting Clients in a Down Economy

Remember I was on the fence about Facebook? Well I have decided to join the bandwagon. What made me change my mind? I teach law practice management at St. Louis University Law School, in St. Louis, Missouri, as an adjunct professor. A fellow lawyer at my class changed my mind for me. I guess I can be a lawyer, present a friendly, ‘get to know you’, ‘I too have the same problems like you’ facade; friend my clients and friends and still continue to maintain my dignity and private life. Who knew? I am exploring the settings on Facebook, so that I can feel good about connecting without compromising. My caveat, of course, is don’t give any legal advice. I have both a personal page and a page for my business. Still sparsely populated, but both pages will get there. So this is an invitation to friend me and become a fan.

I am slowing embracing the Facebook jargon. The story the lawyer told was that he was in a flood, his cell phone was wet and he had to contact his office to excuse his absence. Not having a working home phone or cell, he created a Facebook page and connected with colleagues. At the end of the day, his entire office and several dozen friends had passed the message along. He had dozens of calls to assist him. A heartwarming true story. My students are thrilled with the fact that the course is in touch with a world they know. After all, this generation is seeking business online rather than at a brick and mortar store. Facebook is great for C to B, not so much for B to B. See my last post.

What is troubling is the fact that clicking on ads may send your private profile details to internet ad tracking companies like Google and Adwords. WSJ found user’s ID being transmitted to data aggregators. Facebook is not alone in this, but when you see that Facebook has 500 million subscribers worldwide and 135 million in the US, a third of the US population, then the issue is magnified. So share with caution. Federal regulators, criminal enforcement, college admissions offices, employers and other similar agencies, surf the social media sites for information. Delete the beer snarfing, making out pictures on the wall; better yet, hide your wall. Display your photo and name only. There are users with their names deliberately misspelt. So much for Facebook rules on disclosing true identity. According to WSJ, Facebook transmits the unique “Facebook ID” number assigned to every user on the site. The user’s ID is a public part of any Facebook profile. Anyone can use an ID number to look up a person’s name, using a standard Web browser, even if that person has set all of his or her Facebook information to be private. For other users, the Facebook ID reveals information they have set to share with “everyone,” including age, residence, occupation and photos. Maybe the takeaway is to populate your profile sparingly. Overlapping friends circle can also bring danger from unwanted ‘friends’. De-friend unwanted friends by using the ‘block’ feature on Facebook and encourage your friends to do the same. ‘Foursquare’, an online location based software application, can pinpoint locations of friends in the vicinity. Import your Facebook friends into Foursquare and track who is close by. Could be a breach of privacy. So ‘friend’ carefully and review your friends list on Facebook periodically. It is OK to friend coworkers, bosses and classmates, just with caution. Never say anything that you will be embarrassed by later. After all, this is permanent public sharing with potentially 500 million viewers. The fear!!! The potential!!! What a wonderful way to connect with people. Friends get to know you as a person, beyond business–see someone they can trust.

See you in my next post.

Nalini S Mahadevan, JD, MBA

Attorney at Law

www.lawyersyoucantalkto.com

Copyright 2010.  All rights reserved.

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