OSC Document Abuse Settlements

The Errors that Employers Commit

Some hiring mistakes end up costing employers a lot of money and time, and loss of reputation. This past October, the Office of Special Counsel (OSC) arrived at an agreement with the New Jersey-based home healthcare provider, Advantage Home Care, LLC, which was charged for violating the anti-discrimination provision of the Immigration and Nationality Act (INA). Advantage Home Care was asking new hires, who were lawful permanent residents, to present additional and different documents during the Form I-9 employment eligibility verification process.

The claim was brought to OSC by an individual who applied for a job. When the individual applied to Advantage Home Care, the company ran a criminal background check and wrongly determined that the individual was using an invalid Social Security number (SSN). The individual went to the Social Security Administration, which concluded that the SSN was valid; however, Advantage Home Care would not employ the applicant. Upon further investigation, OSC found that Advantage Home Care required lawful permanent residents to provide more documents to validate work authorization than US citizens. The INA prohibits such discrimination.

In early October, similar charges were brought upon Las Vegas-based Tuscany Hotel and Casino, LLC. The company was also found to be using discriminatory practices during the employment eligibility verification and re-verification processes.

A complaint was filed with OSC in May 2012, asserting that Tuscany was asking non-citizen job applicants to provide additional or different documents during the work authorization process; US Citizen applicants were not asked to present more documents. Once hired, and in order to remain employed, the company then asked non-citizen employees to provide further document requests during the re-verification process. Moreover, non-citizen employees were subject to severe reviews, which US citizen employees didn’t have to endure.

Expensive Mistakes for Employers

Per OSC’s agreement with Advantage Home Care, the company will pay $1,633 to the individual and $46,575 in civil penalties to the US. Advantage Home Care must also pay back pay to previous job applicants who suffered financially from the company’s policy. Additionally, the company’s human resources staff will be trained in employers’ responsibilities and best practices to prevent discrimination during the employment eligibility verification process. In order to ensure compliance, Advantage Home Care’s staff will also be monitored by OSC for three years.

Under the agreement, Tuscany will pay $49,000 in civil penalties to the US and make payments to the complainant. Tuscany will administer new employment eligibility verification policies and practices that will eradicate any employment-based discrimination. Additionally, the company will train its staff on how best to avoid discrimination in the verification process, and will be monitored for compliance.

Lessons Learnt

Employers must train HR personnel on the proper documentation methods for ‘onboarding’ employees. In addition to training, written guidance or manuals for proper intake are necessary to avoid financial penalties, and work stoppage due to worksite audit. Losses may occur because workers are redirected to answering the government, providing requested documents and undergoing mandatory training as part of the worksite enforcement action. An employer’s reputation can suffer because the audit and fines are reported on government and public websites, and news media. Employers can use an immigration attorney to prevent these costly mistakes.

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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How DACA Affects Employers

As of today, USCIS has received 298,834 applications for Deferred Action for Childhood Arrivals (DACA) eligibility. Of these, 53,273 have been approved; workers who have been approved will either seek new employment or continue with past employment. My previous blog post from mid-October discussed how employers could unintentionally admit to ‘knowingly’ hiring unauthorized workers who apply for DACA.

DACA allows illegal immigrants, who meet certain guidelines, to remain in the US. Individuals who receive approval, also receive USCIS-issue work authorization cards called Employment Authorization Document (EAD) to demonstrate eligibility to work in the US for US employers.

Under current law, employers must keep a Form I-9 for all hired employees, both citizens and non-citizens, who are engaged to work in the US. USCIS has now issued specific guidance for employers about treatment of DACA recipients’ EAD cards, and procedures to record and process their Forms I-9 for these employees.

Hiring new Employees with EAD cards issued under DACA

In order to properly complete a Form I-9, certain documentation is required to prove both identity and employment authorization; under List A, an unexpired EAD is an acceptable document for Form I-9 completion.

The DACA EAD provides proof that an employee has been allowed to stay in the US and has been authorized to work, but has no legal status. The employer can enter EAD information in Section 2 under List A since an EAD card provides both proof of identity and work authorization. The EAD alone provides I-9 proof of the employee’s ability to work in the US; if the employer is presented with an EAD, he or she may not ask for additional documents. When an EAD expires, the employer must reverify that the employee still has work authorization in Section 3 of Form I-9.

Guidance for Processing Existing Employees

Employers who collect updated documentation from employees should examine the employee’s previously completed Form I-9 to decide whether a new Form I-9 should be completed for that employee, or decide to only complete Section 3 of the original Form I-9.

Employers should complete a new Form I-9, write the original hire date in Section 2 and attach the new I-9 to the old I-9 if any of the following changes from Section 1 of the previously completed I-9:

  • employee’s name
  • date of birth
  • attestation
  • social security number (if one was provided)

Employers should only complete Section 3 of the previously completed I-9 if:

  • information from Section 1 hasn’t changed or if
  • the employee provides a new EAD

The employer should examine the documentation for authenticity; and, if provided, record the document title, number and expiration date. Employers should also sign and date Section 3.

Guidance on E-Verify

If the employer must complete a new Form I-9, and uses E-Verify, then the employer should confirm the new I-9 information through E-Verify. If the employer only has to complete Section 3 of I-9, then an E-Verify check is not required.

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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Employment Practices that Could Lead to Immigration Discrimination

In order to help employers, the Office of Special Counsel (OSC) sometimes answers immigration-related questions about unfair employment practices, such as an employee presenting either invalid or fraudulent documents.

When an employee provides fraudulent documents, an employer is allowed to request the employee to present a different document. However, the employer’s concern may be that the employee could be committing a felony; and that if the employer asks for more documentation, the employee might commit an additional felony.

The employer needs to remember that the Immigration and Nationality Act (INA) disallows four types of unlawful conduct. The employer is not allowed to discriminate on the basis of:

1. citizenship or immigration status discrimination;
2. national origin discrimination
3. unfair documentary practices during the employment eligibility verification (Form 1-9) process (“document abuse”); and
4 retaliation for filing a charge or asserting rights under the anti-discrimination provision.

(source)

An employer might be in violation of USCIS policy 8 U.S.C. § 1324a, which makes employment of unauthorized aliens unlawful if the employer is aware that a document is fraudulent but accepts it. If an employer rejects a document that seems to be invalid, then the employer is allowed to ask the employee to present a different document from the Lists of Acceptable Documents from Form I-9. In order to steer clear of violating anti-discrimination laws, employers should examine documents equally for all employees.

Company Policy

Another issue pertains to whether a company policy can fire anyone that presents fraudulent documents, and regard such individuals as unqualified for rehire. It is illegal for an employer to ‘knowingly’ hire an individual who is not authorized to work in the US. The statue 8 U.S.C. § 1324a(a)(1) states, “Employers determined to have knowingly hired or continued to employ unauthorized workers…will be required to cease the unlawful activity, may be fined, and in certain situations may be criminally prosecuted.” If an employee’s document is genuine but the employer deems it to be fraudulent, then the employee can bring charges under the anti-discrimination provision, or INA. During such a case, OSC’s investigation would concentrate on the employer’s objective.

Sometimes an employer can have a company policy of regarding individuals who provide invalid documents as unqualified for rehire. An employee can file charges under the anti-discrimination policy if the employer disallows a work-authorized employee from employment, based on the individual’s previously undocumented status. This sort of “dishonest policy” would be investigated by OSC, wherein OSC would focus on whether the policy is consistently applied, without observance of citizenship status or supposed national origin. OSC will also determine if the employee was terminated based on citizenship status discrimination. However, a consistent treatment of a “dishonesty policy” would not be a violation of the anti-discrimination provision.

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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Why We Need More STEM Graduates

On October 28, a week before the presidential election, the Australian Prime Minister Julia Gillard introduced a white paper that lays out a comprehensive plan for Australia to attract qualified Asian immigrants. Australia’s Minister for Immigration and Citizenship, Chris Bowen, said that Australia needed to attract highly skilled Asian immigrants to bring their specialist skills to Australia in order to boost the economy. He said the top 10 sources of highly skilled immigrants in Australia were India, which provided 23% of its immigrants in 2011; as well as China, the Philippines  Sri Lanka, Malaysia, South Korea and Vietnam. Australia intends to increase the number of international students in Australian universities by streamlining the immigration process.

Similar white papers have been issued by Canada, which has now made pathways for skilled immigrants and investors to migrate to Canada easier. UK has similar plans, and the UK Border Agency revised its guidance last June for skilled workers and investors.

In the US, foreign students contribute, according to various sources, an upwards of $21 billion to our economy — no small chump change. It is good business for the US economy that we continue to encourage and seek foreign students, and to streamline the process for them to emigrate to the US. That process begins at the consulate, where the welcome mat is laid out for foreign students. I have often had the displeasure of informing highly skilled foreigners completing PhDs and Fellowships that it could take them almost 10 years to obtain their greencards. So it is with pleasure, after this election, that I read that both political parties are willing to exchange and compromise on comprehensive immigration reform that includes good news for STEM graduates and other highly skilled workers who want to come to the US.

The US’s Position

Two-thirds of the US’s immigration is family-based, while the other third is employment-based. This is in stark contrast to Canada, where employment immigration is the major contributor to the Canadian population. The American Immigration Lawyers Association (AILA) has implored various national leaders and prominent politicians to continue immigration reform. Such politicians include pragmatists like Lindsey Graham, Chuck Schumer and John Boehner; but excludes Chuck Grassley and Mitch McConnell, who have spoken against immigration reform in the past.

The US proportion of graduating students who attend college in the US is slated to fall to 17.8% by 2020 from 23.8% in 2000, while the share of China will rise 9-13% and India will rise 6.5-7.5%. The implication of this is that India and China will have larger populations of college graduates than the US. The US needs an educated population to remain globally competitive. China has made investments in its workforce, which is the core of its economic strategy; and in India, a culture of higher education propels young people to go beyond the undergraduate level and attain Masters and PhDs.

A Global Force

If the US does not encourage more educated and productive people to enter and remain in the US legally (this includes engineers, doctors, lawyers, teachers as well as lower-skilled workers) we will lose the race in global competition. A recent report from Organization for Economic Co-Operation Development (OECD)’s states that, “the balance of economic power could shift dramatically over the next 50 years.” According to this report, China could become the world’s largest economy by 2016.

To ensure long-term increase in productivity, living standards and higher income per capita, the US needs a qualified population. One of the pathways to economic growth is either locally qualified workers or imported workers. According to the Wall Street Journal, citing a recent Deloitte consulting survey, there are about 600,000 US manufacturing jobs going unfilled during a period of high unemployment due to “workforce shortages or skills deficiencies in production positions such as machinists, craft workers and technicians.”  US manufacturers have gotten out of the habit of running in-house apprentice programs; therefore, US manufacturers require ready-made “plug-and-play” workers to fill these deficiencies. We can either use homegrown workers, or “plug-and-play” workers through immigration.

It is an economic necessity, and it in our best interests, to reform our immigration policies — our country must move forward and remain a global force. We need workers both at the high levels, as well as the lower levels, to fill labor-intensive jobs and to reverse brain drain. We need workers who are qualified now.

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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ICE’s Official Guidelines for Electronic I-9 System Audits

In response to an electronic Forms I-9 provider, US Immigration and Customs (ICE) issued guidelines for maintaining an electronic I-9 system for employers.

In early October, ICE issued their official guidelines for assessing electronic Form I-9 systems in an audit. These guidelines tell Homeland Security Investigator (HSI) agents and auditors what Form I-9 information to gather from employers’ electronic systems – guidelines that also help HSI agents to determine I-9 related fines, based on electronic I-9 requirements.

Though ICE has been continually augmenting regulations for its two-year-old electronic I-9 system, storing Forms I-9 electronically is still an employer’s safest bet. Storing Forms I-9 electronically helps to minimize paperwork and paperwork errors; it also allows for easier management and incorporation of E-Verify, which saves time and prevents variances.

A New Framework

In an effort to streamline their I-9 audit procedures, ICE has created a new framework for assessing I-9 systems. If you’re sent a Notice of Inspection (NOI), these are the things you need to know:

1. Audit Trail

Full electronic I-9 compliance means employers must have an audit trail. ICE guidelines require an employer’s electronic system to make a secure and permanent record – and for this record to reflect the date of use, why it was used and what it was used for – when an electronic Form I-9 is created or changed. Since this is the number one investigative method for ICE, it should be an employer’s number one priority.

In order to show the audit trail, specific actions should be taken by an employer when creating and managing Form I-9. A thorough electronic I-9 system will record:

    • the creation of a form for an employee
    • personal information, employee testimony, electronic signatures and dates, any further documentation
    • any updated or altered information

Such a trail is needed so that ICE agents can determine whether an employer’s practices are in compliance with ICE regulations, and whether ICE must issue civil fines.

2. Software Provider & Operating Procedure

When an employer receives an NOI, ICE will ask for the name of the employer’s electronic I-9 system software provider. ICE needs this information so that the agents can gain a better understanding of how the system functions.

In an audit, the employer will have to provide a thorough explanation of their operating system. The employer should make ICE’s job as easy as possible; the employer’s chosen system should be simple and easy to use.

3. Indexing System

Indexing systems catalog employees by name and other attributes, which is helpful in the case of an ICE audit. Employers must make sure that their indexing systems have safeguards that can avoid duplication of employees or Forms I-9. Employers should steer away from systems that merge payroll, tax and employment verification with Forms I-9 – these different areas of information should be stored separately.

4. Electronic Signature

ICE’s regulations on electronic signatures are somewhat unclear. What is clear is that employers must develop a standard procedure for acquiring an employee’s electronic signature, and must guarantee that the signature on the Form I-9 is actually the employee’s. ICE will inspect electronic signatures to ensure that the “significance”– that the employee understands what he/she is signing – has been maintained.

5. Hardcopies

ICE regulations require that an employer’s operating system be able to produce hardcopies of electronic Forms I-9; the best systems will allow the employer to download a PDF version of electronic records.

6. System Demonstration

A system demonstration doesn’t seem like a necessity, but sometimes software vendors have a knack for misleading their customers. For a better user experience, some vendors have added fields, which are not on the original Form I-9; or they have moved fields around – i.e. fields from section 2 are in section 1. Such renderings can sometimes lead to accidental in compliance, and alter the meaning of the form.

Conclusion

While many employers are in favor of electronic I-9 systems – it reduces paperwork and is easily accessible – let us remember two cases. The first is the case of Abercrombie & Fitch, where the electronic I-9 system erased several employees’ records and the company was unable to produce them in reply to an NOI from ICE. The second is the case of UCSD Medical Center, where the electronic I-9 system prompted HR to ask for documents that were not required from naturalized citizens and permanent residents, leading to charges of document abuse and monetary fines.

Different electronic vendors have different programs – before entering into or storing Form I-9 electronically, the employer needs to do some due diligence to ensure the program follows compliance procedures mandated by ICE. It’s best to consult an immigration attorney when previewing an electronic system.

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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DHS Grants Same-Sex Couples a Reprieve

US immigration allows US citizens, who are ‘married’ to citizens of other countries, to apply for permanent residency based on marriage. In other words, the foreign spouse can qualify for permanent residency based on their marital relationship with the US citizen. The US government is now seeking to expand the scope of the marital relationship to include same-sex couples in long-term relationships.

To achieve this, in June 2011 the Department of Homeland Security (DHS) and US Immigration and Customs Enforcement (ICE) issued a policy called, “Exercising Prosecutorial Discretion Consistent with Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens”, or the Prosecutorial Discretion Memorandum. This policy outlined the guidelines that enforcement officers are to follow when finding and removing illegal aliens from the US. This memo was issued to explain the position that DHS and ICE would take on treatment of young immigrants who are in long-term, same-sex relationships with American citizens.

In a written statement in September, DHS further clarified the Prosecutorial Discretion Memorandum by specifically stating that young immigrants, with American same-sex partners, will remain eligible for deferral, which means that no action would be taken to remove foreign-born, same-sex couples from the US.

Prosecutorial Discretion Policy

Prosecutorial discretion is the act of an agency or officer deciding how to bring charges upon a person and how to handle a case.

When deciding how to pursue a case, enforcement officers follow the guidelines of the Prosecutorial Discretion Memorandum. As the guidelines state, officers must asses an individual’s “ties and contributions to the community, including family relationships.” As it was made clear by DHS Secretary Janet Napolitano this September 2012, these ‘family relationships’ also include “committed, long-term, same-sex partners.” Instead of centering efforts on cases that do not pose a threat to US security, the Obama administration is focusing enforcement resources on deporting immigrants who are potential risks to public safety and national security.

Policy Ambiguities

Though guidelines for same-sex couples were outlined in the Prosecutorial Discretion Memorandum, many thought the memo was vague. In July, over 80 Democrats from the House of Representatives wrote to Secretary Napolitano, “it would be beyond senseless to see L.G.B.T. persons with family ties here in the United States deported” because officers might be uninformed about the guidelines on gay partners (NYT, “Same-Sex Couples Granted Protection in Deportations”, 28 Sept 2012).

Thousands of deportation cases have been closed since DHS’s clarification. While immigrants-in-question can remain in the US, they still will not be granted legal status.

DHS’s clarification does not affect the issue of gay immigrants, who are married to American citizens, being able to acquire permanent resident visas. According to current law, same-sex immigrant spouses are not eligible for green cards and can be deported.

DHS may not deport same-sex couples, and will give these couples reprieve. However, deferral is not a path for citizenship. We will wait until November to see if these policies will be continued.

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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Employers Could Admit to ‘Knowingly’ Hiring

Young immigrants applying to Deferred Action for Childhood Arrivals (DACA) must prove that they have lived in the US for at least five years, and one way to obtain evidence is to ask employers to supply proof of job status. However, employers who consent might also be admitting that they ‘knowingly’ hired an unauthorized worker, which violates federal law.

Low Figures

There are an estimated 1.2 million young immigrants who are eligible for DACA, but since Aug. 15, when US Citizenship and Immigration Services (USCIS) began accepting applications, the Department of Homeland Security (DHS) has only received over 82,000 applications. Figures are lower than predicted, partly because of unforeseen drawbacks in DACA guidelines.

If young immigrants receive eligibility for DACA, they receive deferred action and legal work permits; but they do not receive legal immigration status. While DACA does not lead to a ‘green card’, in most states, applicants are eligible for a driver’s license, a huge benefit.

‘Knowingly’ Hiring and New DACA Guidelines

In order to be eligible, young immigrants must be enrolled in school or have a high school diploma, which may present a dilemma for employers and applicants alike. Many employers rely on low-wage labor in order to run their businesses, and many employees are young immigrants who must work in order to pay for university, or who were forced to drop out because they couldn’t afford university costs. It is estimated that 740,000 working immigrants are eligible for DACA.

USCIS, a division of DHS, made addendums to the DACA guidelines, confirming that employers can help verify DACA applicants. Evidence of knowingly hiring unauthorized workers will not be revealed, “unless there is evidence of egregious violations of criminal statutes or widespread abuses,” the guidelines state. All DHS enforcement resources are being directed towards threats on public safety.  However, the term ‘egregious violations’, has not been defined in the guidance.

DACA guidelines ask applicants to provide any Social Security numbers (SSN) they have previously used. Falsification of SSNs, whether they are fake numbers or real numbers belonging to someone else, is a common occurrence and can be seen as evidence of fraud or identity theft. However, the new guidelines state that the form is only inquiring about numbers, “that were officially issued to you by the Social Security Administration.”  Hence no disclosure of social security numbers is required if the number was not specifically applied for by the applicant. This is a huge relief for E-verify employers, who may reduce the possibility of facing social security mismatches and tentative non-confirmation messages from the Social Security Administration.

The bottom line is that no DACA applicant will be given immunity, but DHS is not interested in using the application as a means to discover individuals who may have abused federal law in an employee-employer relationship.

(NYTimes, “Deportation Deferrals Put Employers of Immigrants in a Bind”, 9/26/2012)

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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The Plan for More Visas for STEM Grads

Earlier this September, Sen. Charles Schumer introduced the Benefits to Research and American Innovation through Nationality Statutes (BRAINS) Act to the Senate. BRAINS proposes to make 55,000 more green cards available for STEM (Science, Technology, Engineering and Mathematics) graduates, over a two-year period.

STEM graduates are foreign-born students who have obtained graduate degrees from American universities in science, technology, engineering or math. In order to receive a green card, the graduate must have a US job offer in one of these four fields.

Texas Rep. Lamar Smith also proposed a similar bill to the House. Unlike Schumer’s BRAINS Act, Smith’s bill recommends an elimination of diversity visas, the US’s lottery program for receiving a US Permanent Resident Card. The diversity visa program makes 55,000 visas available to people with certain eligibilities, and who have emigrated from countries with low US immigration rates.

The House bill did not pass. Democrats were against Smith’s bill, which they believe will reduce legal immigration. Both parties want to make more green cards available for STEM graduates, but have not agreed on a plan of action. Schumer’s bill will go through the Senate before November elections.

Microsoft’s Proposal

Microsoft is also lobbying Congress to boost the number of H1b visas that companies use by 20,000. Currently, Microsoft has 6,000 job openings, more than half of which necessitate expertise in the fields of technology and science. However, there is a gap between available jobs and job seekers’ ability levels – Microsoft’s petition targets this issue.

In Microsoft’s petition, the company recommends increasing H1B visa fees to $10,000 in order to create a STEM adaptation of the Race to the Top federal grant program that stimulates school education improvements. The program would be called Race to the Future, which would pay to hire STEM teachers and include computer science classes in schools.

Microsoft proposes giving STEM employees access to 20,000 green cards, an action that would begin to undertake the large build up of green cards, while also allowing skilled workers to remain in the US and contribute to our economy.

The problem with Microsoft’s proposal is that the scheme shuts out smaller employers who already pay substantial amounts in immigration and other fees to increase their workforce by sponsoring H1B visa holders. The scheme will create a two tier system of petitioners for visas.

Effect on the US Economy

Call and write your Senator about supporting increased visas for STEM graduates so that we keep their valuable knowledge in the US and prevent reverse ‘brain drain’. These graduates create jobs in other ‘support’ fields, promote innovation and contribute to the tax base.

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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Slow Pace of H1B Adjudications Affects US Businesses & Economy

In mid-September, we had to inform many of our clients, who had filed H1B visas for their employees, that we had not received a response from USCIS; and judging from the published backlogs about these filings (over as many as 17,000 H1B visas), it isn’t likely that we will receive any decisions until the end of the year. Reluctantly, we advised our clients to pay the additional premium processing fee for urgent requirements.

Business and Economic Losses

If the losses from the slow adjudication process are added up, losses for American businesses are also adding up. First, there are the current projects that American businesses have with American client companies, which run the gamut from hospitals, car rental companies and credit card processors; financial and banking companies; retail, hotel and restaurant chains; IBM and Microsoft; and universities. In this day and age, everything is online and mobile. Current contracts are either delayed or postponed, and taxes paid by visa holders to the US and State government coffers are not collected. If delays continue, US businesses are likely to send these operations overseas, enriching foreign tax coffers.

Second, we face a brain drain from American universities. The difficulty for foreign students obtaining a timely US visa forces these students, who have gathered knowledge at our universities, to migrate to Australia, Canada, UK and their home countries where their US-gained knowledge is welcomed. This situation, again, is a loss of millions of dollars to the US economy.

Foreign Students in American Universities

This past year, enrollment of temporary residents in graduate school surged by 7.3%. Temporary residents made up 16.9% of American graduate school enrollment, a figure only growing as foreign governments pay for their citizens’ American education, specifically in technical fields. Foreign students made up a sizable percentage of technical areas: 45.5% of students in US engineering graduate programs, and 42.4% of students in US mathematics and computer science graduate programs, are foreign students. (NYTimes, “Enrollment Drops Again in Graduate Programs”, 9/28/2012).

Recently, some beneficiaries of H1B visas have reported receiving tremendously shortened periods of visa approvals from the consulates, despite being approved for the full period of H1B visa entitlement from USCIS. This re-adjudication contributes to the unfriendly and unwelcoming atmosphere facing H1B applicants and their sponsoring companies.

The tide of demand for US visas ebbs and flows: often, the federal government is not able to support US companies’ efforts to attract the best and brightest to work for us.The wave of hostility generated by our actions should not arrive at a tipping point. We could very well lose what makes up our American identity, and our ability to produce multi-million dollar products like Facebook, iPhones and Google.

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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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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