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Volume 5, Issue 5, May 2009 |
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The Business Immigration Monthly is Hammond Law Group’s web-based newsletter, directed at international workers and employers seeking the most up-to-date news on U.S. immigration issues, specifically those that impact workers on H, L, E, and O visas and workers seeking permanent residency.
JUNE visa bulletin http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html
H-1B CAP NOT
REACHED YET!!!
The Masters cap has received the full subscription of 20,000 petitions. USCIS continues to accept Masters cases since their experience is that not all accepted cases will be approvable.
ARB FINDS PEGASUS A WILLFUL VIOLATOR AND ASSESSES CIVIL PENALTIES The Dept. of Labor’s Administrative Review Board (ARB) has released a decision, reversing the Administrative Law Judge’s (ALJ) decision, finding that Pegasus Consulting Group, an IT consulting company, had “willfully violated the INA’s H-1B wage requirements”, by failing to comply with the H-1B program’s requirements. The ARB found that the evidence presented showed that Pegasus knew of its obligation to pay its H-1B employees in non-productive status or to terminate their employment. This knowledge and their failure to comply with these requirements, showed a “knowing failure” to comply with the H-1B wage requirements and, therefore, a “willful” failure to comply.” As such, the ARB found Pegasus liable of willfully violating the INA and assessed civil penalties (on top of the back wages the ALJ already previously assessed) in the amount of $5000. This decision is telling, particularly for IT consulting companies whose employees are in non-productive status. The holding shows that even if a company relies on an employment contract, which Pegasus did in their argument, and did take some steps towards compliance, this is not enough to protect a company from being assessed civil penalties for noncompliance. For full decision see: http://www.oalj.dol.gov/PUBLIC/ARB/DECISIONS/ARB_DECISIONS/LCA/05_086.LCAP.PDF
ALJ FINDS H-1B EMPLOYER LIABLE FOR BACK WAGES FOR BENCHED EMPLOYEE A recent Administrative Law Judge (ALJ) decision, Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09), found an H-1B employer, Itek Consulting Inc. liable for back wages for periods of time when the employee was in nonproductive status. In its decision, the ALJ references the pertinent part of the Regulations, writing “Employers are required to pay H-1B workers on the date on which the worker “enters into employment” with the employer. 20 C.F.R. § 655.731(c)(6). Employers are required to pay H-1B employees the required wage for both productive and nonproductive time. Employment-related nonproductive time, or “benching,” results from lack of available work or lack of the individual’s license or permit. 8 U.S.C. § 1182(n)(2)(c)(vii); 20 C.F.R. § 655.731(c)(7)(i). An employer need not pay wages for H-1B visa workers in nonproductive status due to conditions unrelated to employment or which render the employee unable to work. 20 C.F.R. § 655.731(c)(7)(ii).” These Regulations are particularly important given the state of the economy and the fact that many employees are now on the bench. The ALJ also found that an employee did not need a SSN to begin work, only evidence of having applied for one, to be considered in an employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. For full decision see: http://www.oalj.dol.gov/Decisions/ALJ/LCA/2008/WAGE_and_HOUR_DIVISI_v_ITEK_CONSULTING_INC_2008LCA00046_(MAY_06_2009)_114836_CADEC_SD.PDF
USA TODAY EDITORIAL- CONGRATULATIONS, GRADUATE. NOW LEAVE THE USA. In an USA Today editorial, the author offers his opinion on the current immigration policy and how it discourages recent skilled graduates from remaining in the US and contributing to the US economy. The author writes, “The current policy makes no sense. It turns away talent educated at top universities, often subsidized by U.S. taxpayers, at the very moment the nation needs all the smarts and innovation it can muster.” He quotes Federal Reserve Chairman Ben Bernanke writing, “Our immigration laws discriminate pretty heavily against highly talented scientists and engineers who want to come to this country and be part of our technological establishment”…By opening doors to more people with top technical skills “you’d keep companies here, and you’d have more innovation here, and you’d have more growth here.” As the author concludes, “To shun them [talented foreign graduates from US universities] is to ignore a huge resource”, and strongly encourages “Congress to reassess and make the system flexible enough meet employer needs.”
eVERIFY GROWING IN POPULARITY IN CALIFORNIA The Los Angeles Times is reporting that the eVerify program is becoming increasingly popular in the California area, with 1,000 new businesses signing up for the program each week despite concerns about its reliability. Now totaling more than 124,000 participants, with 10,000 in California alone, the eVerify program is a government run system that enables employers to check whether an employee is authorized to work. Last week, the Obama administration had requested Congress allocate an additional $12 million more to the program, bringing its budget to $112 million. Janet Napolitano, Dept. of Homeland Security Secretary calls the program, “a cornerstone of workplace enforcement across the country,” and claims that efforts are being made to improve the 96% accuracy rate of the system and to increase the training of employers against discrimination. At the end of June, all federal contractors and subcontractors will be required to begin using the eVerify system. For more information about signing your company up for the eVerify program, please contact your HLG attorney. http://www.latimes.com/business/la-fi-everify14-2009may14,0,7963143.story
OLD LCA OPERATIONAL UNTIL JUNE 30, 2009 The Department of Labor has informed AILA liaison that they will keep the old LCA system operational through June 30, 2009. The DOL has implemented fixes to many of the issues brought to their attention by AILA and other stakeholders thus far. The decision to keep the old LCA system operational will allow the DOL to continue to evaluate issues brought to their attention and to give users additional time to become familiar with the system. The new LCA system became operational on April 15, 2009.
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