Employer Law Report : Employment and Labor Relations Lawyer & Attorney : Porter Wright's Employer Law Report : Employment Litigation, Non-Compete, Trade Secrets

On October 7, 2011, we reported that the USCIS changed its procedures regarding the delivery of approval notices. Effective September 12, 2011, notices were sent to the applicants or petitioners instead of counsel, as had been the long standing practice. There were numerous complaints through several channels, and the USCIS hosted a "Stakeholder Engagement" session to receive feedback on October 12. A week later, Director Alejandro Mayorkas announced that the policy would be reversed, and the USCIS would again send approval notices to counsel of record. The reprogramming of the system to restore the policy will take approximately 6-8 weeks, but should eliminate the problems created by the sudden change in this long standing practice.
 

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We previously reported on an interim I-9 rule from December 2008 (see U.S. Citizenship and Immigration Services Announces Revised I-9 Form).  Citizenship and Immigration Services now has finalized the interim rule. The final rule is effective May 16, 2011. As a practical matter, the final rule continues the provisions we discussed in this previous blog from two years ago. Employers therefore simply should continue to follow these provisions as they have for the past two years.

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U.S. Citizenship and Immigration Services published a final rule outlining filing fee increases for immigration benefits petitions and applications. The announcement and related questions and answers mention several times that CIS receives approximately 90% of its $2.4 million budget from filing fees. As a result, CIS explains that it needs to increases the fees to recover the costs of its operations.

The new filing fees applicable to employers concern the I-129 petition for temporary visa categories (e.g. E, H-1B, L, O, TN) and green card processing (e.g. I-140 immigrant worker petition and I-485 application to adjust status). The I-129 petition fee increases only slightly, from $320 to $325. The I-1-140 petition fee will increase from $475 to $580. The I-485 application increases to $1,070, up from $1,010. The most substantial increase is for the optional premium processing fee for 15-day service. It will jump from $1,000 to $1,225. Finally, for employees with family members who require dependent status, such as H-4, the filing fee for the I-539 application actually will decrease by $10, from $300 to $290.

CIS maintains a complete list of filing fees at www.uscis.gov.  As noted above, the new fees go into effect on November 23, 2010.

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After a two-month delay for the Obama Administration to review the new form and related policies, today (April 3, 2009) marks the introduction of the yet another version of the I-9 form. Employers are required to use the new form to verify the employment eligibility of all newly hired individuals on or after today's date  - April 3, 2009. 

There are two changes from the previous editions of the form. First, the last page of the form, which identifies acceptable documents, has some modified language and adds additional documents that can be accepted to verify employment eligibility in both List A (documents that establish both identity and employment eligibility) and List C (documents that establish employment eligibility). Employers may now accept a passport from the Federated States of Micronesia or the Republic of the Marshall Islands with an I-94A admission document as proof of both identity and employment authorization. This modification is based upon a recent compact between these two territories and the United States. The second modification requires the new employee to identify their status as a citizen, permanent resident, national of the United States, or an alien temporarily authorized to work. Prior versions of the form included citizen or national with the same check mark, but the new form differentiates between the two classifications. Neither of these changes will impact many individuals, but the new form is nevertheless required for all newly hired employees beginning on April 3, 2009. 

The new form is available at this link on the USCIS web site.

A new version of the employer’s I-9 Handbook is also available on the USCIS web site.

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The conference committee negotiating the American Recovery and Reinvestment Act of 2009 (H.R.1), also known as the stimulus bill, agreed to include one controversial immigration provision, but deleted a second. The first provision prohibits all financial institutions receiving TARP funds from hiring any employee in H-1B status unless the company complies with the H-1B dependent provisions. These provisions inhibit the ability by an employer to hire H-1B employees by requiring a recruiting process similar to an application for labor certification before filing the petition. This will make it very difficult for any recipient of TARP funds to hire or retain H-1B employees, and will deny banks and other recipients the ability to hire highly skilled individuals for some positions.

Opponents of the bill have argued that rather than stimulating the economy, this provision could actually have the opposite effect by stifling the ability of troubled businesses to hire and retain the expertise needed for their operations. The second provision, requiring the expansion of E-Verify to even more employers, has been deleted.

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A recent wage-and-hour case illustrates the effect payroll deductions can have on minimum wage compliance. In Rivera v. Brickman Group, Ltd., No. 05-1518 (E.D. Pa. Jan. 7, 2008), a company brought Guatemalan and Mexican workers to the United States for seasonal employment under H-2B visas. Although the workers were paid amounts that appeared to be above the minimum wage, the company failed to take into account certain travel expenses and other employment-related costs incurred by the workers – expenses that reduced the workers’ earnings below minimum wage levels.

In particular, the court found that transportation expenses, costs involved in obtaining visas, and fees charged by the company’s recruiters were incurred by the workers primarily for the company’s benefit. Therefore, the company violated the Fair Labor Standards Act because the deductions brought the employees’ earnings below the minimum wage. In reaching its decision, the court rejected the company’s argument that the Immigration and Nationality Act and the Portal-to-Portal Act supersede the FLSA with regard to H-2B workers’ wages and do not require employers to bear the travel expenses of such employees. The company has not yet announced whether it will appeal the decision.

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