Tag Archive for: PREVAILING WAGE DETERMINATION VALIDITY PERIOD

Cyrus Mehta

BALCA EN BANC SPEAKS ON RECRUITMENT AND THE PREVAILING WAGE VALIDITY PERIOD

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U.S. companies employing foreign workers in H or L nonimmigrant status are increasingly subjected to random, surprise site visits by the USCIS. This article provides an overview of such visits.

The site visits occur under the Administrative Site Visit and Verification Program (ASVVP) conducted by the Fraud Detection and National Security (FDNS) Directorate.  The purpose of the visits, according to USCIS, is to “verify information contained in certain visa petitions.”  Visits are conducted pre- and post-adjudication on randomly selected applications and petitions.  Interestingly, ASVVP site inspections are not performed in cases where fraud is suspected, although they are part of the fraud detection process, geared toward enhancing the “integrity of the immigration benefit process.”

Many of those who have experienced such site visits are thrown into a state of worry and sometimes panic, convinced that there must be a huge problem with their petition and ability to employ foreigners in H-1B or L status.  Beneficiaries get worried because they see their H-1B status (and perhaps the green card process they have been waiting so long to come to completion) flash before their eyes, as if it might disappear.  There is a great deal riding on these site visits:  if an officer is unable to find a beneficiary or verify the information in a petition, the petitioner may receive a denial on a pending case or a notice of intent to revoke an approved petition.  If derogatory information is discovered during a site visit, this may lead to further investigation or even civil or criminal penalties.

Our advice?  Nothing earth shattering:  Be prepared.  If you employ foreign nationals in H or L status, be sure that if an officer from FDNS comes to conduct a site visit, your employees (such as the receptionist, HR team, etc.) know to contact a specific person (such as the signatory on the petition) who can accompany the officer throughout the visit and answer his or her specific questions about the petitioner, the details of the petition, and the beneficiary.  The officer will usually want to speak with the signatory and the beneficiary.  If those individuals are not available, the officer should be asked to provide contact information for a follow up discussion.  The officers may also want to verify details with the signatory or beneficiary by phone or via email after conducting the site visit, if they are not available at the time of the visit.  If the beneficiary is not available at the worksite, for example because he or she is out sick or tending to a family member, the company should have clear proof that the individual has taken a sick day, otherwise revocation could result.  If the beneficiary is employed at a third-party worksite, it is important that the receptionist or other first-contact employees are aware of the person’s placement and can direct the officer to the beneficiary.

What kinds of information are FDNS officers looking for? Some typical areas of inquiry include: To the petitioner, about the petitioner

  • Verify the signatory of the petition, his or her position within the organization
  • Whether the signatory is aware that an H-1B petition was filed for the beneficiary
  • Check the ID of the petitioner’s signatory
  • Total number of employees at the petitioner’s company
  • Number of employees on H-1B status
  • Number of employees with LPR status
  • Gross annual income
  • Net annual income

To the petitioner, about the beneficiary:

  • Start date with the organization
  • Current salary
  • Whether the petition signatory is aware that the beneficiary is on H-1B status

To the beneficiary:

  • Name of the employer/petitioner
  • Offer letter for the position with the petitioner
  • W2 for the most recent year
  • Most recent paystubs
  • Description of job duties
  • Photocopies of qualifying degrees
  • Who paid petition filing fees and attorney fees?

To a third-party/end-client worksite representative:

  • Describe the relationship between end client and the petitioner
  • Does the end client anticipate receiving the services of the beneficiary?
  • If the answer is yes, the end client may be asked to provide
    • beginning and ending dates of beneficiary’s employment;
    • job description/duties;
    • beneficiary’s physical work location
    • project description of the task to which beneficiary has been assigned; and
    • name and title of the beneficiary’s supervisor
  • Is end client aware that the beneficiary is an employee of petitioner?
  • Who assigns work to the beneficiary?
  • Who does the end client contact about employee related issues for the beneficiary?

You may recognize that these questions go to the issues not only of verifying details in a petition but also of verifying the existence of an employer-employee relationship and whether the employer controls the employment of the beneficiary.  We discussed this issue in former articles about guidance issued by USCIS in January 2010, providing a general overview of the guidance, and  advice on using the guidance

Once this information is provided, the parties are often greeted with silence, in large part because the officers conducting the site visits report their results to FDNS for review, but do not themselves make decisions regarding the validity of an application or petition.  After the site visit is over, FDNS reviews the information and determines whether further inquiry is necessary.  As USCIS summarizes: “If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, the ISO may request additional evidence from the petitioner or initiate denial or revocation proceedings.  When indicators of fraud are identified, the FDNS Officer may conduct additional administrative inquiries or refer the case to ICE for criminal investigation.”

Most petitioners have an attorney prepare their immigration filings for them.  Where is the attorney in this process?  Unless the petitioner or the beneficiary gets the attorney on speakerphone in a conference room during a site visit, or asks the attorney to take the lead on following up with the officer, the attorney will be absent from the process.  Site visits are surprise visits of the petitioner’s offices or the beneficiary’s worksite (if not at the beneficiary’s offices).  Attorneys are not informed of the visit, and a petitioner’s (and beneficiary’s) right to counsel in this context is basically ignored.  USCIS takes the position that petitioners have consented to the visits by signing the Form I-129, Petitioner for Nonimmigrant Worker, which in Part 7 includes the following statement:  “I also recognize that supporting evidence submitted may be verified by USCIS through any means determined appropriate by USCIS, including but not limited to, on-site compliance reviews.”  Thus, the burden is on the petitioner and/or beneficiary in a particular case to get counsel involved in the on-going process.

Cora-Ann Pestaina

NOT SO FAST! DOL HESITANT TO FOLLOW MATTER OF HORIZON COMPUTER SERVICES ON PREVAILING WAGE VALIDITY

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By Cora-Ann Pestania

My elation over the recent Board of Alien Labor Certification Appeals’ (BALCA) decision in Matter of Horizon Computer Services, Inc., 2010-PER-00746 (May 25, 2011), expressed in my last blog, has proven to be short-lived. Last week, I attended the American Immigration Lawyers’ Association’s (AILA) Annual Conference on Immigration in San Diego, CA. At the conference, one of the most popular panels is the Department of Labor (DOL) Open Forum where members of AILA are permitted to directly question such bigwigs as William Carlson, Administrator, and Elissa M. McGovern, Chief of Policy Division, both of the Office of Foreign Labor Certification, U.S. Department of Labor. Naturally, the subject of Matter of Horizon Computer Services arose.

In Matter of Horizon Computer Services, the employer commenced its earliest recruitment before the Prevailing Wage Determination’s (PWD) validity period and filed the PERM after the PWD had expired. The DOL, citing 20 C.F.R. §656.40(c), denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period. The DOL currently interprets 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period and has denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. In Matter of Horizon Computer Services, BALCA held that the timing of the employer’s recruitment complied with the regulations in 20 C.F.R. §656.40(c) and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA held that the employer must initiate some recruitment during the PWD validity period but not necessarily the “earliest” recruitment.

At the AILA Conference, the DOL Open Forum panel was questioned as to whether the DOL would soon be issuing a new FAQ (Frequently Asked Questions) with regard to the holding in Matter of Horizon Computer Services and whether attorneys could safely rely on this case when conducting recruitment for purposes of a PERM labor certification application. We did not get the answer we were hoping for. Instead, Ms. McGovern explained that the DOL reviews BALCA decisions just as attorneys do and that Matter of Horizon Computer Services is currently being reviewed along with BALCA’s decision in Matter of Ecosecurities, 2010-PER-00330 (June 15, 2011), which she said has a “similar fact pattern.” Ms. McGovern informed attendees that the DOL will figure out a path “in between” the two decisions and devise a directive.

In Matter of Ecosecurities, the employer commenced recruitment on May 6, 2007. The employer obtained a PWD valid from June 18, 2007 to September 16, 2007. The employer filed the PERM on Monday, September 17, 2007. The DOL Certifying Officer (CO) denied the PERM under 20 C.F.R. §656.40(c) because neither the earliest date listed for a recruitment step nor the date the application was filed, fell within the PWD validity period. The employer requested reconsideration and argued that because the PWD expired on a weekend, the expiration date ought to be extended to Monday, September 17, 2007. As authority, the employer cited the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (OALJ) which provides that “[i]n computing any period of time under these rules…the time begins with the day following the act, event, or default, and it includes the last day of the period, unless it is a Saturday, Sunday or legal holiday observed by the Federal Government in which case the time period includes the next business day.” 29 C.F.R. § 18.4(a). The CO affirmed the denial and forwarded the case to BALCA finding that there was no reason why the employer could not have filed the application on Sunday, September 16, 2007 since the Permanent Online System (www.plc.doleta.gov) is available 24 hours a day and seven days a week. BALCA held that the OALJ Rules of Practice and Procedure cited by the employer in support of its argument that the PWD ought to be considered valid until Monday, September 17, 2007, have no bearing on the expiration date of the employer’s PWD because they only govern filings before the OALJ and, moreover, govern filings by mail on days when the office is closed. BALCA stated that while its decision “may appear to elevate form over substance,” it is an appellate body and it “simply does not have the discretion to waive the clearly stated regulatory requirements.”

BALCA had, a mere 21 days earlier, held in Matter of Horizon Computer Services, that the Employment and Training Administration (ETA) did not intend that the first recruitment step begin during the validity period, only that some recruitment step be initiated during that time and BALCA vacated the denial of the PERM application filed after the PWD’s expiration date. In light of that, why didn’t BALCA similarly hold, in Matter of Ecosecurities?

Matter of Ecosecurities is devoid of any facts that would aid in a perfect side by side comparison of the two cases. But, in Matter of Horizon Computer Services the employer placed the Job Order only 2 days before the PWD validity period and then commenced every other type of recruitment within the PWD validity period. In its decision, BALCA made an effort to point out that “the employer initiated every single recruitment step during the validity period with the exception of its first recruitment step.” In Matter of Ecosecurities, the Employer initiated its first form of recruitment 43 days before the PWD validity period. This long time period is significant. The fact that BALCA did not discuss the other forms of recruitment and when they were each initiated is significant. Since there is no discussion about the timing of the other recruitment, we can assume that no recruitment was initiated during the PWD validity period and all recruitment was initiated prior to June 18, 2007. This makes Matter of Horizon Computer Services and Matter of Ecosecurities entirely distinguishable. If the employer in Matter of Ecosecurities had initiated some recruitment within the PWD validity period, BALCA would have decided the case similar to Matter of Horizon Computer Services. Contrary to Ms. McGovern’s statements, the two cases do not have “similar fact patterns” and the DOL should not conflate the two decisions!

Nevertheless, at least for now and until the DOL issues a directive, it is safest for practitioners to continue to abide by the DOL’s erroneous interpretation of 20 C.F.R. §656.40(c) and ensure that our clients either begin the earliest recruitment or file the PERM labor certification application within the PWD’s validity period. In my opinion, though, Matter of Horizon Computer Services can indeed be relied upon if the DOL has denied a PERM application where the employer commenced recruitment before the PWD validity period, initiated at least one form of recruitment during the PWD validity period and filed the PERM after the PWD had expired.

Cora-Ann Pestaina

BALCA GETS IT RIGHT!! RECRUITMENT AND THE PREVAILING WAGE DETERMINATION’S VALIDITY PERIOD

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Cora-Ann V. Pestaina

Pardon me while I take a moment to pump my fist! I am just really excited (and also relieved that sanity finally prevailed!) over the Board of Alien Labor Certification Appeals’ (BALCA) recent decision in Matter of Horizon Computer Services, Inc. 2010-PER-00746 (May. 25, 2011), http://j.mp/jAQRfO. Along with many fellow practitioners, I have long been irked by the Department of Labor’s (DOL) continued erroneous and hypertechnical interpretation of the rule found in 20 C.F.R. §656.40(c). I first wrote on this issue in August 2009 on www.cyrusmehta.com, in my article entitled, “How the Definition of the Word “Begin” Could Affect Your PERM Application.” http://j.mp/k1e5e6.

The DOL has long interpreted 20 C.F.R. §656.40(c) to mean that the employer must begin the earliest recruitment or file the PERM labor certification application within the prevailing wage determination’s (PWD) validity period. The DOL has consistently denied PERM applications where the employer commenced recruitment before the PWD’s validity period and filed the PERM application after the PWD had expired. Rather than fight with the DOL (and suffer through the long wait in the appeals queue!), most employers simply conducted new recruitment and filed a new PERM application. In my article, I argued that the DOL’s interpretation of the rule was (1) overly narrow and contrary to the plain meaning of the regulation; and (2) contrary to the Employment and Training Administration’s (ETA) intent when promulgating the regulation which was to have the employer conduct at least one form of recruitment within the PWD validity period. I expressed the hope that a well-crafted Motion to Reopen and Reconsider would bring forth a more definitive statement from BALCA.

We finally have this statement in Matter of Horizon Computer Services! In this case, the employer began its earliest recruitment by placing a job order on January 22, 2007. The employer obtained a PWD with a validity period from January 25, 2007 to June 30, 2007. The employer filed the PERM application on July 20, 2007, after the PWD had expired. The DOL denied the application because the employer did not begin its earliest form of recruitment during the PWD’s validity period and cited 20 C.F.R. §656.40(c) as authority for the denial. The employer fought back in a Request for Review and cited to the ETA’s notice of proposed rulemaking for PERM regulations wherein the ETA sought to explain the need for specific PWD validity periods and stated:

2. Validity Period of PWD
We are proposing that the SWA must specify the validity period of PWD on the PWD form, which in no event shall be less than 90 days or more than 1 year from the determination date entered on the PWDR. Employers filing LCA’s under the H-1B program must file their labor condition application within the validity period. Since employers filing applications for permanent labor certification can begin the required recruitment steps required under the regulations 180 days before filing their applications, they must initiate at least one of the recruitment steps required for a professional or nonprofessional occupation within the validity period of the PWD to rely on the determination issued by the SWA. Employment and Training Administration, Proposed Rule, Implementation of New System, Labor Certification Process for the Permanent Employment of Aliens in the United States [“PERM”], 20 CFR Part 656, 67 Fed. Reg. 30466, 30478 (May 6, 2002).

Based on the ETA’s statements, the employer in Matter of Horizon Computer Services argued that the ETA did not intend that the employer’s first recruitment step begin during the validity period but only that some recruitment step be initiated during that time. In fact, with the exception of the job order, the employer had initiated all of its recruitment during the PWD validity period.

BALCA agreed with the employer, vacated the DOL’s denial and held that the timing of the employer’s recruitment complied with the regulations and that regulatory history and fundamental fairness precluded the DOL’s interpretation of the regulation. BALCA agreed that the ETA intended only that the employer initiate some recruitment during the PWD validity period and not the earliest recruitment.

Accordingly, under Matter of Horizon Computer Services, in order to rely on an expired PWD in the filing of a PERM application, the employer must have initiated at least one recruitment step during the PWD’s validity period. That is, the first day of at least one form of recruitment must fall within the PWD validity period. Conducting or initiating all recruitment prior to the PWD’s validity period and then filing after the PWD has expired will likely still result in a denial of the PERM application.

Matter of Horizon Computer Services is an important decision especially at this time of the year when the DOL issues PWDs with only a narrow 90-day validity period. The DOL updates its prevailing wage databases on July 1st. PWDs issued around this time of year have only a 90-day validity period as opposed to PWDs issued after July 1st which are typically valid until June 30th of the following year. Employers who initiated recruitment prior to obtaining the PWD, initiated additional recruitment during the PWD’s 90-day validity period but were then unable to file the PERM application within the brief 90-day validity period of the PWD, would previously have had no recourse.