1. Labor Cert News: Atlanta NPC No Longer Forwarding to BALCA All PERM Requests for Reconsideration; Statistical Updates for FY 2014 Q4; H-1B Legacy Docs No Longer Available – The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced news on several topics.
4. USCIS Extends TPS for Honduras, Nicaragua – For those who have already been granted TPS under the Honduras or Nicaragua designations, the 60-day re-registration period ends on December 15, 2014.
5. SEC Charges Immigration Attorneys With Defrauding Investors Seeking U.S. Residence; SEC-USCIS Issue Joint Alert – SEC and USCIS caution potential EB-5 investors about phony regional centers posing as legitimate investment opportunities.
7. President Extends Staggered Crossings of Seafood Workers Through December 11, 2014 – No staggered entry of H-2B workers after December 11, 2014, will be permitted absent further legislative extensions.
9. ABIL Global: France – The government has finalized its draft of the Law on the Rights of Foreigners in France. Also, France has adopted a law to combat fraud in the framework of posted workers.
10. Firm In The News...
The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced the following news:
Atlanta NPC change in process. As of October 27, 2014, the Atlanta National Processing Center is no longer automatically forwarding to the Board of Alien Labor Certification Appeals (BALCA) all PERM Requests for Reconsideration where the original case decision was upheld. Rather, a Notice of Decision will be issued when the case is upheld, and the employer must affirmatively request review before BALCA no later than 30 calendar days after the date the Notice of Decision is issued.
The announcement is available at http://www.foreignlaborcert.doleta.gov/.
Statistical updates for FY 2014 Q4. OFLC has issued updated program fact sheets with selected statistics for the permanent labor certification program, prevailing wage determination program, H-1B temporary visa program, H-2A temporary agricultural visa program, and H-2B temporary nonagricultural visa program. Reports were derived from program data as of September 30, 2014. The updated fact sheets are available at http://www.foreignlaborcert.doleta.gov/performancedata.cfm#stat.
H-1B legacy records no longer available. On July 8, 2013, the National Archives and Records Administration (NARA) approved OFLC’s revised retention schedule following a 30-day period of public notice and review. NARA determined that employer applications for labor certification and supporting documentation, whether retained in paper or electronic form, are temporary records and subject to destruction. The OFLC-approved disposition schedule authorizes the retention of records for five years after the date a final determination letter is issued or final action occurs, such as a withdrawn application, subject to an active investigation or litigation hold.
The records NARA identified as permanent records are the annual disclosure data files at http://www.flcdatacenter.com, as well as the quarterly disclosure data files and the OFLC Annual Reports on the OFLC Performance page at http://www.foreignlaborcert.doleta.gov/performancedata.cfm.
Labor Condition Applications (LCAs) retained in the LCA Online System are all beyond the retention period of five years from a date of final determination or final action. Therefore, effective October 17, 2014, the LCA Online System at http://www.lca.doleta.gov has been decommissioned.
The OFLC said it is no longer responding to inquiries to search for records in response to Freedom of Information Act requests, or providing information for requests for duplicate certifications for LCA applications processed in the LCA Online System, in keeping with the OFLC records schedule.
“Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guidepostsЙ.That specialized knowledge may ultimately be a ‘relative and empty idea which cannot have plain meaning’…is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.”
SEC-USCIS joint alert. In response to similar cases, in 2014 SEC and USCIS issued a joint alert cautioning potential EB-5 investors about phony regional centers posing as legitimate investment opportunities. The joint alert includes information about steps to take to research any offering that purports to be affiliated with the EB-5 program. For example, would-be investors should:
- Confirm that the regional center has been designated by USCIS;
- Obtain copies of documents provided to USCIS;
- Request investment information in writing;
- Ask if promoters are being paid;
- Seek independent verification;
- Examine structural risk;
- Consider the developer’s incentives; and
- Look for warning signs of fraud.
The joint alert notes that hallmarks of fraud may include:
- Promises of a visa or becoming a lawful permanent resident—investing through EB-5 makes a person eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant a conditional visa or subsequently remove the conditions on lawful permanent residence. USCIS noted that it carefully reviews each case and denies cases where eligibility rules are not met. “Guarantees of the receipt or timing of a visa or green card are warning signs of fraud,” the alert notes;
- Guaranteed investment returns or no investment risk;
- Overly consistent high investment returns;
- Unregistered investments;
- Unlicensed sellers; and
- Layers of companies run by the same individuals.
The SEC’s announcement is available at http://www.sec.gov/News/PressRelease/Detail/PressRelease/1370542843452#.VDnK4JDD-71. The SEC’s complaint is available at http://www.sec.gov/litigation/complaints/2014/comp-pr2014-184.pdf. IIUSA’s statement is available at https://iiusa.org/blog/category/press-room/press-releases/. The SEC-USCIS joint alert is available at http://www.sec.gov/investor/alerts/ia_immigrant.htm.
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- Justice Dept. Settles Lawsuit Against Texas Bus Company for Discrimination
The Department of Justice (DOJ) recently reached a settlement with Autobuses Ejecutivos LLC, doing business as Omnibus Express, a bus company based in Houston, Texas. The settlement resolved a lawsuit filed in August 2013 by the DOJ under the Immigration and Nationality Act’s (INA) antidiscrimination provision. The lawsuit alleged that the company discriminated against U.S. workers by preferring to hire workers on temporary H-2B visas for its bus driver positions.
Under the settlement agreement, Omnibus Express will establish a $208,000 fund to compensate victims of its discriminatory practices, pay $37,800 in civil penalties to the United States, and be subject to monitoring of its hiring and recruiting practices for a two-year period.
The announcement is available at http://www.justice.gov/opa/pr/justice-department-settles-lawsuit-against-texas-bus-company-discriminating-against-us.
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- President Extends Staggered Crossings of Seafood Workers Through December 11, 2014
On January 17, 2014, President Barack Obama signed into law the Consolidated Appropriations Act of 2014, which included a provision permitting the staggered entry of H-2B workers employed by seafood industry employers under certain conditions. Following passage of the Continuing Appropriations Resolution, 2015, this provision was extended to December 11, 2014. Accordingly, no staggered entry of H-2B workers after December 11, 2014, will be permitted absent further legislative extensions.
To use the “staggered crossing” provision, seafood industry employers must download, complete, and sign the official attestation and provide it to the H-2B nonimmigrant worker for presentation, upon request, to Department of State consular officers and/or the Department of Homeland Security’s Customs and Border Protection officers.
According to a related FAQ, all employers submitting an H-2B application for temporary employment certification must accurately indicate their temporary need, including the starting and ending dates of need for the period in which they intend to employ H-2B nonimmigrant workers. However, the 2014 Appropriations Act permits employers in the seafood industry to bring into the United States, in accordance with an approved H-2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer’s certified start date of need, if certain conditions are met.
The 2014 Appropriations Act contained two primary conditions that employers must meet. First, the rule applies only to employers engaged in a business in the seafood industry that permit or require their H-2B nonimmigrant workers to enter the United States up to 120 days after the certified start date of need. Second, any seafood industry employer that permits or requires its H-2B nonimmigrant workers to enter the United States between 90 and 120 days after the certified start date of need must complete a new assessment of the local labor market during the period that begins at least 45 days after the certified start date of need and ends before the 90th day after the certified start date of need.
Seafood industry employers who conduct the additional recruitment required by the 2014 Appropriations Act should not submit proof of the additional recruitment to the Office of Foreign Labor Certification. Instead, they must retain the additional recruitment documentation, along with their pre-filing recruitment documentation, for three years from the date of certification.
The announcement is available at http://www.foreignlaborcert.doleta.gov/news.cfm. The official attestation form is available at http://www.foreignlaborcert.doleta.gov/form.cfm. The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQs_Seafood_Staggering_2014_Approps_final_040114.pdf.
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- USCIS Issues Instructions for DED Liberians on Applying for 24-Month Extension of Work Authorization
On September 26, 2014, U.S. Citizenship and Immigration Services (USCIS) extended for an additional 24 months the deferred enforced departure (DED) of certain Liberians and provided for work authorization during that period. The DED extension began on October 1, 2014, and runs through September 30, 2016. USCIS published a notice in the Federal Register on October 1, 2014, providing instructions for eligible Liberians on how to apply for the full 24-month extension of employment authorization. The notice also provides instructions for DED-eligible Liberians on how to apply for permission to travel outside the United States during the 24-month DED period.
USCIS said it will issue new employment authorization documents (EADs) with a September 30, 2016, expiration date to Liberians whose DED has been extended under the Presidential Memorandum of September 26, 2014, and who apply for EADs under this extension. Given the time frames involved with processing EAD applications, the Department of Homeland Security (DHS) said it recognized that not all DED-eligible Liberians would have received new EADs before their current EADs expired on September 30, 2014. Accordingly, the notice also automatically extends for six months (through March 30, 2015) the validity of DED-related EADs that had an expiration date of September 30, 2014, and explains how Liberians covered under DED and their employers may determine which EADs are automatically extended and their impact on employment eligibility verification (Form I-9) and E-Verify processes.
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- Pro Bono Success Story: Miller Mayer Helps Nuns Obtain R-1 Religious Visa
Alliance of Business Immigration Lawyers member firm Miller Mayer in Ithaca, New York, represented a religious organization of nuns in its religious worker (R-1) nonimmigrant visa petition on behalf of a foreign national nun who serves at churches in upstate New York. This was the organization’s first successful R-1 petition with U.S. Citizenship and Immigration Services (USCIS), which required Miller Mayer to prepare the sisters for a USCIS fraud detection site visit. Miller Mayer performed the work pro bono.
- ABIL Global: France
The government has finalized its draft of the Law on the Rights of Foreigners in France. Also, France has adopted a law to combat fraud in the framework of posted workers.
Draft Law on Rights of Foreigners
The government has finalized and published its draft of the Law on the Rights of Foreigners in France, which is a significant overhaul of the Code of Entry and Stay of Foreigners and of Asylum (CESEDA). The new law would increase the use of multi-annual permits to stay, create new immigration categories, and eliminate the work permit requirement for assignments of less than three months.
Below are highlights of the major changes of interest to human resource and mobility managers. The draft law is not yet scheduled for parliamentary debate, which is expected to occur in upcoming months.
Purpose of the Draft Law
The government aims to reduce the workload for civil servants and the compliance burden on business, and to attract qualified foreign nationals and investments to France. The draft law achieves these three goals by: (1) increasing the use of multi-annual permits to stay, thus reducing the renewals of the current one-year permit to stay (Carte de Séjour Temporaire); (2) creating a new multi-annual “supra” category, the Talent Passport, which overhauls many existing categories and creates some new ones that will be of interest to business; and (3) eliminating the temporary work permit (APT) requirement for foreigners assigned to France for less than three months.
Increased Use of Multi-Annual Permits
Currently, most third-country nationals are issued a one-year renewable permit to stay. The renewal process requires multiple personal appearances and issuance of temporary documents (récépissés).
The draft law provides for the issuance of multi-annual permits with a maximum validity of four years, after the expiration of the initial one-year permit, to the extent the third-country national has demonstrated his or her willingness to adhere to French cultural and republican values.
The draft law provides that trainees, self-employed professionals, and visitors will not benefit from the multi-annual permit.
Currently, there are several categories to attract talent and investment. The draft law merges the existing categories into the Talent Passport. This “supra” category includes a total of nine categories with a maximum validity of four years:
- Young Qualified Graduate (jeune diplômé qualifié): Requires: (i) a master’s or doctorate-level degree earned in France or sponsorship by an employer qualified as an Innovating Start-Up (jeune entreprise innovante) by the Fiscal Code; (ii) a French employment contract; and (iii) a threshold salary determined by decree. This is a new category.
- Highly Qualified Worker (travailleur hautement qualifié): Requires: (i) a three-year university degree or five years of experience; (ii) a French employment contract of at least 12 months; and (iii) a threshold salary determined by decree. This category absorbs the previous European Blue Card without substantial change.
- Inter-Company Transferee (ICT) (salarié en mission): Requires: (i) an intra-group transfer; (ii) a three-month prior employment; and (iii) a threshold salary determined by decree. Under the existing scheme, the three-month prior employment is not required when the ICT becomes a French employee. This category absorbs the previous ICT category without any other substantial change.
- Scientist (chercheur): Requires: (i) a master’s level or higher degree; (ii) tasks of research or teaching at the university level; and (iii) an agreement with a government-approved body. This category absorbs the previous Scientist category, with no significant change.
- Entrepreneur (créateur d’entreprise): Requires: (i) a master’s-level degree or five years of experience; and (ii) creation of an enterprise in accordance with criteria to be determined by government decree. This is a new category.
- Investor (investisseur): Requires a direct investment in infrastructure, as determined by government decree. This category absorbs the previous Exceptional Economic Contribution. The amount of investment is expected to be lowered from €10,000,000 to €500,000 and the number of jobs to be created from 50 to 10.
- Executive Officer (mandataire social): Requires: (i) nomination of a legal representative or executive officer of an entity registered in France; and (ii) a threshold income to be defined by decree. This category was previously covered under Competence and Talent and does not change substantially.
- Artist (artiste): Requires: (i) a contract approved by the cultural (DRAC) or labor (SMOE) authorities for an artistic or cultural activity; and (ii) threshold compensation to be defined by decree. This preexisting category is being merged here without substantial change.
- Foreigner Renowned Internationally in a scientific, literary, intellectual, educational, or sports domain (étranger ayant une renommée internationale dans un domaine scientifique, littéraire, intellectuel, éducatif, ou sportif): Requires: (i) international fame; and (ii) an activity in France in one of the stated areas. This pre-existing category is being merged here with changes to be determined by implementing regulations.
Activities 1, 2, 3, 8, and 9 may be exercised without a separate work permit. In case of involuntary loss of employment, the permit will be extended for one year. Beyond that, the validity will be limited to the remaining period of unemployment benefits.
The accompanying spouse and minor children reaching majority will be issued a multi-annual permit for the duration of the validity of the principal holder of the Talent Passport. Such derivative permit will allow work.
Elimination of the Temporary Work Permit (APT)
The draft law proposes the elimination of the temporary work permit currently required for assignments of less than three months. The impact study accompanying the draft law states that short assignments need to be declared under existing regulations, which are adequate tools to verify a posteriori the legality of such assignments. The elimination of the temporary work permit is a controversial proposition and will be debated in the months to come.
New Law to Combat Fraud in Framework of Posted Workers
A posted worker is one sent by a company in one EU member state to provide short-term services for a company (client or affiliate) in the host EU member state. France’s Act of July 10, 2014 (Act) against unfair social competition translates into French law a directive of the European Union (EU) of May 15, 2014, laying down a set of mechanisms to prevent and punish any violation or circumvention of posting procedures in the EU.
Most of these provisions are incorporated into the code of labor with immediate application.
Declaration of Posting
The Act strengthens the compulsory nature of the posting declaration, which was already required by Articles R. 1263-3 and the Labor Code. The employer sends a statement of detachment to the labor inspectorate having jurisdiction over the work site. The user or the client who contracts with the foreign service provider must ensure that a compliant declaration has been made. In the absence of a compliant declaration, the end user and contracting parties may be jointly and severally liable for payment of an administrative fine of up to €2,000 per posted employee. This penalty may be increased to €4,000 in case of repeated violations. The total amount of the fine may not exceed €10,000. The Act provides that the declaration of posting must be recorded in the statutory register of personnel of the company that hosts posted workers.
Due Diligence and Financial Responsibility of the Payer
The Act strengthens due diligence and accountability of the user or client. The user or client has an obligation of “vigilance” with respect to the collective housing conditions of employees of the provider. In case of failure, the user or client may be required to defray the costs of the collective accommodations of employees.
The required diligence of the user or client also applies to compliance by all contractual parties with labor laws. In case of noncompliance, the user or client must order the other party to comply and, if the noncompliance persists, inform the public authorities. If the user or client breaches these obligations, it is subject to a penalty prescribed by decree of the Conseil d’Etat. In case of noncompliance with payment of minimum wages or if the user or client has failed to fulfill its obligations to order compliance and inform the authorities of noncompliance if it persists, it may be held jointly and severally liable for payment of salaries, allowances, and charges.
Online Publication of Sentences
The Act provides for the publication of court penalty sentences for a period of up to two years on a dedicated website.
Unions’ Right to Sue
The Act creates the right of union representatives to defend before the courts the rights of a posted employee without having to show a power of attorney from that employee. It is sufficient that the employee be informed and not object within 15 days. The employee can always intervene in the proceedings initiated by the union and stop them at any time.
Consequences for Foreign Employers of Posted Employees
These new control mechanisms and sanctions apply to all foreign employers of employees posted to France. The foreign employer posting employees as part of a service to a client in France should therefore ensure its compliance with labor laws applicable in France, including regulations on collective accommodations. In the event of noncompliance, the foreign employer may receive an order from the user or French client to stop the offense. Moreover, if the user or client does not issue a compliance order when appropriate or inform the authorities of persistent noncompliance, such user or client company may itself be penalized in France and be held severally liable for the cost of collective accommodations or payment of salaries, allowances, and expenses payable as compensation to the posted worker.
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- Firm In the News
Cyrus D. Mehta was a Panelist on Ethical Issues, Unauthorized Practice of Law, and Professional Responsibility When Delving Into the Other Side, at the Canada/U.S. Northern Border Annual Immigration Fall Conference, Buffalo, NY, October 17, 2014.