Tag Archive for: Discrimination

Cyrus Mehta

Does the Signing of the I-485 Supplement J By a New Employer Constitute Visa Sponsorship?

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Cyrus D. Mehta and Jessica Paszko*

Portability under Section 204(j) of the Immigration and Nationality Act (INA) allows certain employment-based green card applicants to change jobs or employers while their adjustment of status (Form I-485) application is pending. Portability becomes available once the I-485 has been pending for at least 180 days. It must be exercised by submitting Supplement J (Form I-485J), which confirms the new job offer and its compliance with the same or similar occupational classification as the original job offer that was the basis of Form I-140. Once an applicant’s I-140 priority date is current, there is a race to file an I-485J before the I-485 is approved to ensure the new employment details are recognized and to avoid any potential complications in the adjustment process or later at the time of naturalization. Foreign nationals with backlogged Form I-140 priority dates are generally not envied by their counterparts whose priority dates are current or about to become current. Ironically, the latter group may find themselves green with envy, wishing their non-current priority date could afford them additional time to secure a job offer when faced with unemployment upon their I-140 priority date becoming current.

We’ve previously addressed the dilemma of a green card being approved prior to filing the I-485J, as well as the uncertainties faced by foreign nationals terminated during the “Twilight Zone” with an I-485 pending for less than 180 days. Yet, in exploring these issues, we may have overlooked a crucial element of the I-485J: the employer’s willingness to endorse it. A laid-off worker with a distant priority date need not fear these dilemmas or uncertainties, even if their adjustment has been pending for less than 180 days. They can diligently pursue new opportunities for similar employment, assuming their I-765 application for an Employment Authorization Document (EAD) has been approved, and then request their new employer to execute an I-485J on their behalf. However, navigating this process may not be straightforward, particularly when addressing the standard screening question posed by employers to avoid a charge of discrimination or bias: “Do you now, or will you in the future, require sponsorship for employment visa status (e.g., H-1B visa status, etc.) to work legally for our company in the United States?”

Arguably, a foreign national employed under a valid EAD does not necessitate ‘sponsorship’ for a visa. Yet, the new employer must execute an I-485J on their behalf. Is an I-485J synonymous with sponsorship? Technically speaking, probably not, though the new employer should be apprised of this material fact which raises the question of when it would be appropriate to raise this with the employer?

Answering the screening question in the negative can be defended, as signing an I-485J does not imply the type of ’employment visa’ sponsorship the question typically refers to. While the need for an I-485J may not need to be disclosed during initial screening, could withholding this information until after signing the offer letter be justified? Introducing the I-485J requirement during the interview process, before the offer letter is finalized, could potentially complicate matters although the timing of such a disclosure should be determined on a case by case basis. From the foreign national’s perspective, it may be prudent to delay discussing the I-485J until after accepting the offer. However, if the employer learns of this requirement earlier and withdraws the offer, could the foreign national claim discrimination under INA 274B? Prevailing in such a claim is unlikely under these circumstances.

In the eyes of immigration practitioners, and employers who have been through the PERM process once or hundreds of times, hiring a foreign national with an approved I-140 and pending I-485 is a hard-to-pass-by bargain especially if they have the ideal sought after skills for the job. The new employer does not need to start the time consuming and costly PERM process anew and gets all the benefit of hiring a foreign national that has been vetted as qualified for the job by both the Department of Labor and USCIS. Surely, it would be silly for any employer to pass on hiring a prospective employee upon learning that just one simple form needs to be endorsed for the employer to take over an I-140 that another company spent significant time and resources to obtain. Although that might be the inherent reaction of the employer familiar with immigration visa sponsorship, alarm bells might go off in the ears of the cautious employer that has never sponsored any foreign nationals. From the cautious employer’s perspective, a signature in the employer’s section on the I-485J could expose them to perjury. The I-485J contains one section that must be signed by the applicant and another section that must be signed by the prospective employer who has to describe the job title, duties, and the Standard Occupational Classification (SOC) code, which may be daunting for the employer to figure out, and even more so in light of signing under penalty of perjury.

An employer’s unwillingness to attest to the contents of the I-485J under penalty of perjury may not be the only consideration. A fearless employer who has a hard time believing the government would bother bringing perjury charges against him for something like this would gladly sign off on an I-485J but for the form’s request for information that is fundamentally at odds with the employer’s business practices. Indeed, an employer who solely offers employment-at-will or who never specifies job duties or job duration in offer letters may be hesitant to change its longstanding practice and provide information in the I-485J it has never put in writing. The employer’s unwillingness to endorse an I-485J because to do so would contradict its normal business practices would also cut against a claim that the employer engaged in discrimination. On the other hand, would a discrimination claim fare any better if the employer’s long standing practice is to include job duties and job duration in its offer letters? From that employer’s perspective, despite its long standing practice, denying an offer of employment to a foreign national in need of an I-485J is not commensurate with discrimination because a signature on the I-485J exposes it to perjury, a major liability that its long standing practice does not even contemplate.

The pre-2017 era prior to the requirement of I-485Js offered a simpler process for adjustment applicants who sought job flexibility. During that time, applicants were generally only required to demonstrate, if questioned during a naturalization interview, that they had moved to a same or similar job. However, this approach introduced uncertainty regarding whether applicants were obligated to disclose changes in employment. With the introduction of regulations like 8 CFR § 240.25(a) many years after the enactment of INA § 204(j), clarity has been enhanced: applicants can now use Form I-485J to affirmatively demonstrate ongoing employment with the sponsoring employer or a new job in the same or similar occupation, after the application has been pending for 180 days. While not explicitly mandatory under 8 CFR § 240.25(a), the instructions on Form I-485J have effectively made it a requirement. However, although there is more certainty with the I-485J, applicants may find themselves penalized if the I-485J does not get submitted before the issuance of a green card. This creates a paradoxical situation where those who secured employment before their I-485 approval may benefit more than those who did not, assuming that the employer is not reluctant to sign its part the first place after being confronted with an I-485J asking for job duties and an SOC code.

*Jessica Paszko is an Associate at Cyrus D. Mehta & Partners PLLC.

Cyrus Mehta

Space X’s Constitutional Challenge May Nix DOJ’s Ability to Bring Discrimination Claims Against Employers Under Section 274B of the Immigration and Nationality Act, Including in the Labor Certification Context

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By Cyrus D. Mehta and Kaitlyn Box*

On November 9, 2023, the Department of Justice (DOJ) settled a dispute with Apple concerning allegations that Apple’s recruitment practices under the Department of Labor’s (DOL) foreign labor certification program –  known as  Program Electronic Review Management (PERM) – had discriminated against certain U.S. workers. Specifically, the DOJ alleged that Apple did not advertise PERM jobs on its own website, although it did this as a standard practice for other job openings. Additionally, Apple required applications for PERM job openings to send in paper applications by postal mail, despite permitting online applications for other open positions. Finally, the investigation found that “Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically, as opposed to paper applications submitted through the mail”. The DOJ asserted that these practices cumulatively resulted in Apple receiving few or no applications from U.S. workers for PERM positions. Apple agreed to a settlement that requires it to “pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible discrimination victims”. Moreover, the settlement agreement specifies that the company must ensure that its PERM recruitment practices more closely match its standard recruitment practices in future.

In 2021, the DOJ and DOL reached similar settlement agreements with Facebook over issues with its own PERM recruitment practices. The agencies allegedly discovered through audit of Facebook’s pending PERM applications that the company “routinely reserved jobs for temporary visa holders through the PERM process” through practices designed to deter potentially qualified U.S. workers from applying in violation of INA § 274B(a)(1)(A). Specifically, Facebook allegedly required “applications to be submitted by mail only; refused to consider U.S. workers who applied to the positions; and hired only temporary visa holders”. Pursuant to its settlement agreement with the DOJ, Facebook was required to “pay a civil penalty of $4.75 million to the United States, pay up to $9.5 million to eligible victims of Facebook’s alleged discrimination, and train its employees on the anti-discrimination requirements of the INA”, as well as “conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply, and take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices”. Facebook’s settlement agreement with the DOL will require it to conduct additional notice and recruitment for U.S. workers, and consent to ongoing audits of its PERM applications. We discussed the Facebook settlement in detail in a previous blog.

In our previous blog, we noted that the Facebook settlement seemingly imposed a requirement that employees go above and beyond the PERM regulations when conducting recruitment to ensure that its PERM recruitment practices mirror the way it advertises regular job openings. Because DOL regulations require employers to carry out highly specific recruitment practices, some of which may be quite outdated, such as placing print advertisements in two Sunday newspapers, it may be difficult for employers to both mirror their normal recruitment practices and adhere to the regulatory requirements when conducting PERM recruitment. We noted that these conflicting requirements could prompt some employers to stop sponsoring foreign national workers for permanent residence altogether. Although the penalties paid by Apple and Facebook may be small change to such large companies, similar fines could ruin smaller employers, potentially deterring them from attempting to file PERM applications at all.

Because Apple and Facebook both chose to settle, it is unclear what the outcome of these cases might have been if the companies had chosen to challenge the agencies’ allegations. Both Apple and Facebook complied with the DOL regulations regarding recruitment for US workers under the PERM program. They may have been able to win if they did not cop for settlements. Despite the settlement, Apple did not agree with DOJ’s allegations in its lawsuit. “Apple contests the accusation, according to the agreement, and says that it believes it was following the appropriate Department of Labor regulations,” reported CNBC. “Apple also contests that any failures were the result of inadvertent errors and not discrimination, according to the agreement.”

In September 2023, the DOJ sued SpaceX for discriminating against refugees and asylees in its hiring and recruitment practices. As stated in a DOJ press release, the agency alleged that “[i]n job postings and public statements over several years, SpaceX wrongly claimed that under federal regulations known as ‘export control laws,’ SpaceX could hire only U.S. citizens and lawful permanent residents, sometimes referred to as ‘green card holders’”. Specifically, the company allegedly “…discouraged asylees and refugees from applying for open positions, through public announcements, job applications and other online recruiting communications that excluded asylees and refugees, …failed to fairly consider applications submitted by asylees and refugees, …refused to hire qualified asylee and refugee applicants and repeatedly rejected asylee and refugee applicants because of their citizenship status, and …hired only U.S. citizens and lawful permanent residents, from September 2018 to September 2020”. The suit alleged that SpaceX disregarded the fact that refugees and asylees are treated the same as U.S. citizens and lawful permanent residents for export control purposes, and are similarly permitted to access export-controlled technology after they are hired. SpaceX filed a complaint arguing that the DOJ’s complaint is unconstitutional because the Attorney General, despite appointing Office of the Chief Administrative Hearing Officer (OCAHO) Administrative Law Judges (ALJs), does not review their decisions. This constitutes a violation of the Appointments Clause, which requires a department head like the Attorney General to “direct and supervise” the “inferior officers” he appoints. Judge Rolando Olvera of the U.S. District Court for the Southern District of Texas agreed with SpaceX’s contention and granted a preliminary injunction in the case. See SpaceX v. Carol Bell, Civil Action No. 1:23-cv-00137 (Nov. 8, 2023).   According to Judge Olvera’s order, IER will not be able to cure this defect as “[b]ased on § 1324b’s [INA § 274B] plain language, broader context and legislative history, it is clear the decisions of OCAHO ALJ’s are not subject to the Attorney’s General review.” INA § 274B(g)(1) requires an ALJ to issue “an order, which shall be final unless appealed as provided under subsection (i).” INA § 274B(i) provides that the avenue for an aggrieved party to “seek review of such order” lies exclusively “in the United States court of appeals” 60 days after the entry of such an order.” According to Judge Olvera, “[i]t does not affirmatively provide for the Attorney General to review OCAHO ALJ decisions.”

SpaceX’s countersuit may provide a pathway for other employers whose hiring and recruitment practices under the foreign labor certification program are called into questions by the DOJ,, and wish to assert a constitutional challenge if they are investigated for unlawful discriminatory practices during the labor certification process. Indeed, based on SpaceX v. Bell,  employers may be able to pose an Appointments-Clause challenge to any IER lawsuit or investigation under INA § 274B sealing IER’s ability to bring any discrimination claim.  As stated by Cyrus Mehta in a recent Forbes article, the best practice for employers in light of these cases is to “hew as closely as possible to their non-PERM recruitment practices”, while also ensuring compliance with the DOL’s PERM regulations. Thus, an employer who normally advertises for open positions that are submitted by email should not require applicants for PERM positions to send their applications only by postal mail. When an employer normally advertises open positions on its website, it may be prudent for the employer to do the same for PERM positions, rather than advertising only in print newspapers. At the same time, employers must comply with the DOL regulations’ dictate of advertising in two Sunday print newspapers, even though they do not normally advertise other open positions in newspapers.

Under the foreign labor certification program, it is impossible for employers to completely mirror the recruitment with their real-world recruitment. Employers are also required to only test the labor market before filing the PERM. If there is a qualified US worker, the employer is not required to hire them and is only precluded from filing the labor certification application. The DOL invented the recruitment procedures out of whole cloth in its regulations at 69 FR 77325-77421 (Dec. 27, 2004).  INA § 212(a)(5), from which labor certification springs, only requires the DOL to determine the unavailability of qualified workers for the position and did not impose such an artificial labor market test.   On the other hand, the IER under INA § 274B has a different mandate and can potentially charge employers who conduct recruitment under the foreign labor certification program for discriminatory practices even if they follow the PERM regulations. The Appointments-Clause challenge by Space X if not overturned by the Fifth Circuit or Supreme Court could provide a pathway for other employers to fend off investigations and lawsuits by the IER when they conduct recruitment under the foreign labor certification program.

*Kaitlyn Box is a Senior Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Facebook Settlement Resolving Claims of Discrimination Against U.S. Workers Only Adds to the Contradictions in the Labor Certification Program

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By Cyrus D. Mehta and Kaitlyn Box*

On October 19, 2021, the U.S. DOJ and DOL announced that they had reached separate settlement agreements with Facebook regarding the company’s purportedly discriminatory PERM labor certification practices. These settlement agreements stem from a December 2020 DOJ complaint, in which the government alleged that Facebook had discriminated against qualified and available U.S. workers by “refus[ing] to recruit, consider, or hire” them for over 2,600 positions, which were tied to labor certifications filed on behalf of foreign national workers. Interestingly, Facebook was not accused of violating DOL rules, which require merely that employers test the labor market and discontinue the labor certification process if a qualified U.S. worker is found, but do not mandate that the company actually hire the U.S. worker or terminate the foreign national who currently holds the position pursuant to H-1B status. Instead, Facebook was charged with discriminatory practices under INA § 274B(a)(1), despite adhering to the DOL’s rules for recruitment.

In particular, the complaint alleged that “in conducting recruitment, employers must also engage in a good faith search that closely resembles the employer’s normal recruiting process”, citing Matter of Am. Specialty Pharmacy, 2016-PER-00016, 2019 WL 2910815 (BALCA 2019). The complaint accused Facebook of designing recruitment practices specifically intended to deter US workers from applying for the relevant positions, a policy which discriminated against U.S. workers in violation of INA § 274B(a)(1)(A). At issue in particular were Facebook’s use of different recruitment methods for PERM labor certifications than those employed for regular positions, such as requiring resumes to be sent by postal mail for advertisements related to labor certifications while accepting resumes by email for other open positions. In a previous blog, we discuss in greater depth the context of the complaint and its contradictions with actual DOL recruitment rules.

Although Facebook will pay a civil penalty of $4.75 million to the United States and up to $9.5 million to workers impacted by its practices, a sum that is likely small change to one of the largest companies in the world, the settlement carries more worrying implications for smaller companies that lack Facebook’s resources. The complaint against Facebook emphasizes that employers must make “good faith” recruitment efforts, but paradoxically implies that it may not be sufficient for companies to follow the DOL regulations, particularly where an employer’s PERM recruitment differs from the way it advertises regular job openings. DOL regulations are largely outdated and require employers to carry out recruitment practices, such as placing print advertisements in two Sunday newspapers, that are out of touch with modern employment practices. In addition to conforming their recruitment practices to the specific and anachronistic methods prescribed by the regulations, the Facebook complaint implies that employers must conduct PERM recruitment that mirrors their regular recruitment, requirements which may be near impossible to reconcile. Among the grievances leveled against Facebook were its failure to hire qualified U.S. workers who applied for PERM-related positions and its rejection of free online advertisements when it had purchased print versions, neither of which are prohibited by the regulations.

Even if an employer mirrors its real world recruitment with its labor certification recruitment,   it will still be vulnerable to a citizenship discrimination claim by the DOJ’s Civil Rights Division’s Immigrant and Employee Rights Section (IER) because labor certification recruitment inherently requires a good faith test of the labor market, and not to hire US workers and replace the foreign national worker,  before the labor certification can be filed and certified by the DOL. If the employer hires the US worker, the labor certification may be denied. Even if the employer hires this minimally qualified US worker, and files the labor certification on behalf of the foreign worker, the employer may be found to be in violation as a result of “diversion.” The Board of Alien Labor Certification Appeals (BALCA) has held that a US applicant cannot be diverted to another position, even a more senior position. See Engineering Technology, Inc.,89-INA-10 (BALCA 1990), Sam’s Exxon, 91-INA-362 (BALCA 1992). BALCA has found “diversion” even when the U.S. worker was hired for the same position as the foreign national worker where the employer was unable to establish multiple openings. Aloha Airlines, 91-INA-181 (BALCA 1992).

As part of the settlement,  Facebook is required to consider applicants who apply for PERM positions on Facebook’s Career website. Furthermore, the settlement requires the entry into “Facebook’s recruiting system (“FBR”) all applicants to all PERM related positions who apply via Facebook’s Careers website, enabling such applicants to be searchable and remain searchable in the same manner as applicants to non-PERM related positions at Facebook, and allowing Facebook’s recruiting team to identify, consider, and/or hire such applicants for Facebook job opportunities, including but not limited to ones in the same job profile group as the PERM-related position to which they previously applied. “It is hoped that if applicants for PERM positions are hired for other positions, the DOL does not deny the labor certification under its antiquated “diversion” doctrine.

These conflicting requirements may well prompt some employers to stop sponsoring foreign national workers for permanent residence. The penalty paid by Facebook would be ruinous to smaller employers and may deter them from even wading into the PERM domain. Further adding to the deterrent effect, Facebook faced not only a monetary penalty, but will also be forced to conduct supervised recruitment in future and will be subject to increased scrutiny even of its H-1B program. The latter penalty may be particularly off putting to companies who employ a large H-1B workforce.

Skilled foreign national workers already face several limitations in the US immigration system. There is a paucity of H-1B visas every year. The annual cap is set at a paltry 65,000 plus an additional 20,000 for those who have graduated with advanced degrees from US institutions of higher education. Skilled foreign national workers born in countries such as India and China also face disproportionate backlogs when they are sponsored for permanent residence due to the per country limits. The latest action against Facebook would now provide a disincentive for employers to file labor certifications. This would impact those caught in the backlogs who wish to change employers and obtain new labor certifications but retain their place in the queue by capturing the original priority date

The safest course for employers to pursue in light of the Facebook settlement may be to hew as closely as possible to their non-PERM recruitment practices when conducting PERM recruitment, within the dictates of the DOL regulations. If the employer normally accepts resumes by email, they should not require that applicants for PERM related positions send their resumes only by postal mail. When regular positions are advertised online, it may be prudent for the employer to do the same for PERM positions, rather than advertising only in print newspapers. At the same time, the employer must comply with the DOL regulation of advertising in two Sunday print newspapers even though they do not normally advertise in print for their normal recruitment.

Although the labor certification process requires an employer to conduct a “good faith” test of the US labor market to determine whether US workers are qualified or available for the position held by the foreign national, the very notion of “good faith” seems oddly out of place when used with reference to a recruitment effort that achieves its desired objective by failing to locate any qualified job applicants. Only in the labor certification world do you win by losing.  The real solution, though, would be for Congress or the Biden administration to amend the regulations to comport with real, modern recruitment practices, ensuring that employers will not be tripped up by the contradiction between the “good faith” recruitment suggested by the Facebook complaint and the antiquated practices laid out in the DOL rules.

(This blog is for informational purposes, and should not be relied as a substitute for legal advice).

* Kaitlyn Box graduated with a JD from Penn State Law in 2020, and works as an Associate at Cyrus D. Mehta & Partners PLLC.

 

Cyrus Mehta

The Real Reason for L-1B Visa Denial Rates Being Higher for Indian Nationals

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A study issued by the National Foundation For American Policy confirms what we attorneys who work in the trenches have feared most. It was already been assumed that an L-1B case for an Indian national will face much higher scrutiny, and one was always prepared to put in a lot more work into such a case, only to expect that the case could still be denied.  The NFAP report entitled L-1 Denial Rates Increase Again For High Skill Foreign Nationals now confirms that Indian nationals face the highest refusal rates in the L-1B visa program.

The L-1B visa allows the transfer of a specialized knowledge employee from an overseas entity to a related US entity. This visa should allow US companies to quickly transfer employees in order to remain globally competitive. Instead, the overall denial rate, according to NFAP report, was 35%. Prior to 2008, the overall denial rate was under 10%

Alarmingly, the denial rate for employees coming from India was 56% in 2014 while the denial rate for employees transferred from all other countries was only 13%. The following table from the NFAP report comparing denial rates is very stark and speaks for itself:

L-B DenialRates by Country: FY 2012-2014
Country of Origin
Total
Denials
Denial Rate
Indian Nationals
25,296
14,104
56%
Canadian Nationals
10,692
424
4%
British Nationals
2,577
410
16%
Chinese Nationals
1,570
347
22%
Japanese Nationals
1,145
171
15%
German Nationals
1,100
161
15%
French Nationals
753
140
19%
Mexican Nationals
740
157
21%

Source: USCIS; National Foundation for American Policy.

Immigration attorneys knew it in their bones that when they file an L-1B petition on behalf of an Indian national, however meritorious, it is likely to result in a Request for Evidence, and potentially a denial. USCIS examiners change the goal posts to the point that it has become frustratingly ridiculous. We now have the NFAP report to thank for confirming our worst fears.

Take the example of a company that legitimately produces a software application for the financial industry. It is a proprietary product of the company, and is branded as such. Over the years, the company has developed a loyal client base for this product. The product is upgraded frequently. An employee of the company who has worked on the development of this product in India needs to be transferred to the US so that she can train sales staff in the United States, and also assist in customization upgrades based on each client’s unique needs. This individual should readily qualify for the intra-company transferee L-1B visa as she has specialized knowledge of the company’s proprietary software product. This is what the L-1B visa was designed for by Congress.  Still, there is still going to be a likelihood of refusal of the L-1B visa for this Indian national employee. Even if the L-1B was previously approved, the renewal or extension request of L-1B status may fail. Indeed, the NFAP report confirms that “U.S. Citizenship and Immigration Services adjudicators are more likely to deny a case for an extension of L-1B status than an initial application.” The report goes on to correctly observe: “This seems counterintuitive, since the individual whose status is being extended typically has already worked in the United States for three years and is simply continuing work.”

A prior blog  describes a common example for denying an otherwise meritorious L-1B visa application of an Indian national:

In the denial, USCIS acknowledged that the company had a proprietary product and that the employee had knowledge of its proprietary product. However, USCIS stated that this failed to meet the definition of “specialized knowledge” because the company had failed to demonstrate that it was the only company in the industry that provided its service. To the reasonable person, such a denial seems absurd; such a policy could render obsolete the entire category of specialized knowledge and certainly undermines the capitalist values that inspired the L-1B “specialized knowledge” visa category in the first place. If the L-1B “specialized knowledge” category requires a showing that a business is the only one in the industry to provide a service, no business with a competitor would be able to transfer a worker to the U.S. under the L-1B “specialized knowledge” category. Coca-Cola would be unable to bring in a worker with knowledge of its proprietary product because Pepsi provides a similar service. A showing that an industry is the only one of its kind to provide a service is clearly not a requirement for showing “specialized knowledge”, but, unfortunately, denials for failing to demonstrate the existence of “specialized knowledge” are often the result of absurd interpretations of the L-1B “specialized knowledge” category requirements.

 So let’s try to find out why the refusal rate for Indian nationals is higher than others. Some will justify that since there are more L-1B visa applicants from India, the refusal rate will be proportionately higher. True, but this does not explain why the refusal rate for Indians is 56% while the refusal rate of the next highest number of L-1B visa applications, Canadians, is only 10%. Another argument is that the L-1B visa is seen as a way to get around the H-1B annual cap, and again, since there are more Indian nationals applying for the H-1B visa who did not qualify, it is okay to get tough on their L-1B visa applications. This too is a spurious justification. It is perfectly appropriate for an employer to try to file an L-1B visa for an employee who is qualified for that visa, notwithstanding the fact that he did not make it under the H-1B visa lottery. A person can be eligible for more than one visa classification.

Another justification is that the L-1B visa, like the H-1B visa, is used to facilitate outsourcing. In other words, US workers are replaced by L-1B visa workers who are paid less, and the jobs eventually get transferred to India. One can understand the concern about US workers being replaced by foreign workers, but this does not explain why a company which has a proprietary product that is sold to US financial services clients should get adversely impacted with an arbitrary denial of its L-1B visa application for a specialized knowledge employee.

Moreover, even if an Indian heritage IT firm, accused of outsourcing, wishes to bring in L-1B specialized knowledge employees, it is incumbent upon the USCIS to still meritoriously and objectively determine whether they qualify under the specialized knowledge criteria for the L-1B visa.   As explained in a prior blog, the success of the Indian IT global model has led to a backlash in the same way that Japanese car makers were viewed in the late 1980s. There is no doubt that corporations in the US and the western world rely on Indian IT, which keeps them competitive. This vendetta, spurred on by the likes of Senator Grassley who is the new Chair of the Senate Judiciary Committee and even left leaning think tanks like the Economic  Policy Institute, to deny L-1B visa applications of Indian nationals have unwittingly prepared the way for a massive dislocation of the American economy which will no longer be able to benefit from the steady supply of world class talent that the Indian IT providers have always supplied at prices that American business and its consumers could afford. What has gone unnoticed is the fact that the ability of American companies to maintain their competitive edge has been due in no small measure, to the very Indian IT global model that the US government now seeks to destroy. One can also recall Senator Schumer’s infamous slip of tonguewhen he referred to Indian IT companies as “chop shops” instead of job shops at the time Congress outrageously raised the filing fees for certain L-1 and H-1B employers (to fund a couple of drones on the Mexican border), as if job shops is not enough of a pejorative. Gary Endelman adds in an e mail to the author “that the overly restrictive view of the L-1B discourages international trade and investment and that, by discouraging Indian migration to the USA, the USCIS actually expands the wage differential between India and the USA, thereby increasing outsourcing rather than limiting it.”

Indians are already disadvantaged in the US immigration system. As a result of the per country limits in the employment-based (EB) preferences, those born in India have to wait much longer for their green cards than others. In fact, Indian born beneficiaries of EB third preference I-140 petitions may need to wait decades before they can apply for green cards. Then, Indian three year degrees, and even other qualifications on top of the degree, do not get the same level of recognition than degrees from other countries. As a result, many who could qualify for the EB-2 now have to wait for a lifetime in the EB-3 for their green cards while their children age out, and may not be able to derivatively get the green card with their parents. It is even becoming harder to obtain an equivalency based on a three year degree. The latest revelation that the L-1B refusal rates for Indians is the highest, despite the fact that the claim is meritorious and the denial often happens at the renewal stage (after it was previously approved), only leads to one conclusion. It is discrimination. A mindset has crept into the system that L-1B visa applicants from India are undesirable, and ways are then found to deny the application.  The NFAP report is a wakeup call for fair minded people to question such discriminatory practices and to work towards a more just immigration system for people from all countries.

Cyrus Mehta

RESUMPTION OF SOCIAL SECURITY NO-MATCH LETTERS AND CONSTRUCTIVE KNOWLEDGE

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By Cyrus D. Mehta

On April 6, 2011, The Commissioner of the Social Security Administration announced that SSA would resume sending “no-match” letters, https://secure.ssa.gov/apps10/public/reference.nsf/links/04052011011437PM. Two I-9 compliance mavens, John Fay, http://www.electronici9.com/enforcement/the-return-of-the-social-security-no-match-letter/ and Kevin Lashus, http://www.immigrationcomplianceblog.com/ice/social-security-administration-resumes-sending-no-match-letters/, have adequately commented on this new development, and I will not go into the technicalities of the specifics of such a letter. This post analyzes whether an employer who receives such a letter from the SSA – indicating that its employee’s number does not correspond with an account at the agency – has constructive knowledge that he or she is employing an unauthorized worker in violation of the law.

While INA §274A(a)(1)(A) clearly makes it unlawful to hire “an alien knowing (emphasis added) the alien is an unauthorized alien,” an employer cannot bury his or her head in the sand in the ground like an ostrich, and ignore telltale signs that the person may indeed not be authorized. The regulations at 8 C.F.R. §274a.1(l)(1) defining “knowing” includes “constructive knowledge” and defines the term as follows:

The term knowing includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. Constructive knowledge may include, but is not limited to, situations where an employer:

(i) Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;

(ii) Has information available to it that would indicate that the alien is not authorized to work, such as Labor Certification and/or an Application for Prospective Employer; or

(iii) Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf.

2) Knowledge that an employee is unauthorized may not be inferred from an employee’s foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual.

Yet, not all courts or administrative tribunals have found that an employer had knowledge that an alien was unauthorized to work in the US. In Collins Food International, Inc. v. INS, 948 F.2d 549 (9th Cir. 1991), a seminal case involving the application of constructive knowledge, an employer was sanctioned for knowingly hiring an alien as he made a job offer prior to checking the alien’s documents and because the employer did not verify the back of the social security card. The Ninth Circuit rejected the government’s charges under both the factual circumstances. First, there was nothing in the law or regulations that required an employer to verify documents at the time of the job offer and prior to the hire of the alien. In fact, pre-employment questioning concerning the prospective employee’s national origin, race or citizenship would expose the employer to charges of discrimination under Title Seven. Regarding the employer’s failure to properly verify the back of the social security card, the Ninth Circuit held that under INA §274A(b)(1)(A) an employer will have satisfied its verification obligation by examining a document which “reasonably appears on its face to be genuine.” There was also nothing in the statute that required the employer to compare the employee’s social security card with the example in the handbook of the Immigration and Naturalization Service, and the “card that Rodriguez presented was not so different from the example that it necessarily would have alerted a reasonable person to its falsity.” Finally, the Ninth Circuit was concerned that if the doctrine of constructive knowledge was applied so broadly, the employer may be tempted to avoid hiring anyone with appearance of alienage to avoid liability.

Similarly, even if 8 C.F.R. §274a.1(c)(1)(iii)(A) attributes an employer with constructive knowledge if the employee requests sponsorship through a labor certification, it should not be automatically assumed that the individual is not authorized to work in the US. Such an employee could possess a valid employment authorization as one who has been granted withholding of removal or temporary protected status, which without a sponsorship through the employer, may not provide him or her with any opportunity to obtain permanent residence.

The facts in Collins Food International ought to be contrasted with situations where an employer has been notified by the government after a visit to its premises that certain employees are suspected to be unlawful aliens and is asked to take corrective action. Thus, in US v. El Rey Sausage, 1 OCAHO no. 66 1989, aff’d, 925 F.2d 1153 (9th Cir. 1991), where the INS found several employees using improper or borrowed alien registration numbers, and the INS warned in a letter that unless these individuals provide valid employment authorization they will be considered unauthorized aliens, and the employer simply accepted the word of the aliens as to their legal status, the Ninth Circuit found constructive knowledge. Therefore, it is one thing when an employee who is untrained accepts a false document, as in Collins Food International, and quite another when an employer receives notice from ICE that certain employees may not have proper work authorization.

With regards to a social security “no-match” letter, the issue of whether the employer is deemed to have constructive knowledge continues to remain fuzzy. The employer’s receipt of a no-match letter does not fall squarely within the facts of Collins Food International, yet such a letter still does not constitute a direct indication, as in US v. El Ray Sausage, that the worker is unauthorized. The DHS promulgated a rule in 2007 that would have imputed constructive knowledge to an employer who received either a “no-match” letter from the Social Security Administration (SSA) or a DHS notice. 72 Fed. Reg. 45611 (August 15, 2007). The rule would have provided a safe harbor to an employer if it took the following steps to remedy the no-match within 90 days. The employer first checks its own records to determine whether there is a typographical error or similar clerical error. If it’s not the employer’s error, the employer asks the employee to confirm the information. If the employee says that the information is incorrect, the employer must correct its records and send the correct information to the SSA. If the employee insists that the information he or she gave to the employer is correct, the employer must request the employee to resolve the discrepancy with the SSA. If the employer is unable to verify with the SSA that the erroneous information has been corrected within 90 days, the employer must allow the employee to present new verification documents without relying on the documents that created the mismatch. The regulation was stayed as a result of a challenge in federal court, and the rule was finally rescinded.

In light of the vacuum resulting in the rescinding of this regulation, what guidance can employers rely on? Paul Virtue, former General Counsel of the INS, issued a letter stating that a no-match letter from the SSA did not, standing on its own, provide notice to the employer that the employee is not working without authorization in the US. Letter, Virtue, General Counsel, INS HQCOU 90/10.15-C (Apr. 12, 1999), available on AILA InfoNet at Doc. No. 01061431 (posted on June 14, 2001). However, in the same letter, Mr. Virtue stated that a subsequent action or inaction by the employer, after receipt of such a letter, would be viewed under the “totality of circumstances” in determining whether the employer possessed constructive knowledge of whether the employee was authorized or not in the US. Notwithstanding, employers must not be too hasty in terminating employees if they receive no match letters.


A recent decision on the precise issue of no-match letters, Aramark Facility Services v. Service Employees International, 530 F.3d 817 (9th Cir. 2008), sheds more clarity on whether the employer has constructive knowledge. There, the employer upon receiving no-match letters from the SSA gave its affected employees three days from the post mark of its letter to either get a new social security card or a receipt from the SSA that it has obtained a new one, and if the employee produced a receipt, the employee had 90 days to submit the new card. Those employees who could not comply with this demand were fired, but were told that they could be rehired if they obtained the correct document. Moreover, the employer did not have any specific basis to believe that the employees who were the subject of the no match letters were not authorized to work, and each of these employees had properly complied with the I-9 verification requirements at the time of their hire. The Ninth Circuit had to decide whether to set aside an arbitrator’s award under a narrow exception that the award violated public policy in ordering back pay and reinstatement as the firings were without cause. Aramark’s main argument under the public policy exception was that if it continued to employ these workers it would be sanctioned for knowing that they were not authorized to work in the US. The Ninth Circuit disagreed with the district court’s decision setting aside the arbitrator’s award and held that the mere receipt of no-match letters from the SSA without more did not put Aramark on constructive notice, and forcefully stated that by its own admission the SSA has acknowledged that “17.8 million of the 430 million entries in its database (called “NUMIDENT”) contain errors, including about 3.3 million entries that mis-classify foreign-born U.S.citizens as aliens.” The Ninth Circuit, which relied on Collins Food International, further noted that employers do not face any penalty from SSA, which lacks an enforcement arm, for ignoring a no-match letter. Furthermore, the Ninth Circuit also gave short shrift to Aramark’s second argument that the employee’s reaction to the notification to take corrective action imputed constructive knowledge on the ground that the arbitrator found no proof of any employee having undocumented status as well as to the fact that the employer’s demand to take corrective action was even more demanding than the DHS’s proposed 2007 regulations. Finally, the Ninth Circuit refused to upset the arbitrator’s award in failing to consider that Aramark had offered to rehire the workers if they came back with the corrected document even after the time frame that it had stipulated in its notification to its employees.

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number “no-match” letters, http://www.justice.gov/crt/about/osc/htm/SSA.php, which provide useful nuggets on what one can do and one cannot do when an employer receives a no-match letter.

DO:

•Recognize that name/SSN no-matches can result because of simple administrative errors.

•Check the reported no-match information against your personnel records.

•Inform the employee of the no-match notice.

•Ask the employee to confirm his/her name/SSN reflected in your personnel records.

•Advise the employee to contact the SSA to correct and/or update his or her SSA records.

•Give the employee a reasonable period of time to address a reported no-match with the local SSA office.

•Follow the same procedures for all employees regardless of citizenship status or national origin.

•Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.

•Submit any employer or employee corrections to the SSA.

DON’T:

•Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.

•Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.

•Attempt to immediately re-verify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.

•Follow different procedures for different classes of employees based on national origin or citizenship status.

•Require the employee to produce specific documents to address the no-match.

•Ask the employee to provide a written report of SSA verification.

In conclusion, an employer walks on thin ice upon receiving an SSA no-match letter, and is also caught within the cross currents of the conflicting policies of two agencies. While ICE may require an employer to take action upon receiving a “no match” letter, leading to the employee’s termination, the DOJ’s Office for Special Counsel may find that the employer has engaged in discriminatory practices. It is thus incumbent upon an employer in such a situation to consult with experienced immigration counsel to safely navigate through such murky waters by designing employer policies that would be consistently applied each time the employer receives a no-match letter.

Substantial portions in this blog post have been extracted from KEEPING TRACK: SELECT ISSUES IN EMPLOYER SANCTIONS AND IMMIGRATION COMPLIANCE by Gary Endelman and Cyrus D. Mehta, https://blog.cyrusmehta.com/News.aspx?SubIdx=ocyrus20101218204951#_ftn27