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Immigration Dreaming in California -- Assembly Bill 263 Will Bring Nightmares to the State's Employers
“California deserves whatever it gets. Californians invented the concept of life-style. This alone warrants their doom.” ― Don DeLillo, White Noise
“Political corruption, social greed, and Americanized quasi-socialism can ruin even the most wonderful places. California proved that.” ― Tiffany Madison
As a transplant from Michigan who has thrived in California since settling here in 1982, I've come to expect sneering and cynicism heaped upon this lovely, blessed state. The foregoing quotes are of the genre, California sniping, expressed most frequently as Jack Frost approaches elsewhere, biting the rest of the country into its perennial frenzy of Golden-State envy. We Californians are used to that kind of seasonally-induced, sour-grapes hurling.
But sometimes our state legislature and our governor, the monk formerly known as Moonbeam, take actions that all but invite ridicule.
Recent examples are plentiful, as my colleagues at Seyfarth Shaw, Dana Peterson and Coby Turner, noted in their Nov. 26 posting in the aptly titled, California Peculiarities Employment Law blog ("California Employees Have Even More Protections to be Thankful for This Year").
Today's post will focus on just one section of one of two new laws critiqued in the Peterson-Turner post. Section 4 of Assembly Bill 263, effective January 1, 2014, adds this new provision (Section 1024.6) to the state's Labor Code:
1024.6. An employer may not discharge an employee or in any manner discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
The new section sounds innocuous. Of course no employer should be allowed to assail an employee who merely updates or tries to update "his or her personal information." The transgression seems apiece with that cardinal California sin of violating one's "personal space." The devil, however, is in the subtext.
Consider these common scenarios:
#1: An employer, aware that U.S. Immigration and Customs Enforcement (ICE) is increasingly auditing and penalizing employers for violations of the immigration-paperwork requirement to maintain proof of every new hire's identity and employment eligibility on Form I-9, decides to conduct a voluntary audit of its I-9 records. The employer discovers mistakes or finds copies of identity documents and work permits that, on second look, appear to be less than genuine. It wants to take corrective steps to mitigate any fines ICE might impose.
#2: An employer receives a Social Security Administration letter (a no-match notice) announcing that the employer's payroll tax contributions tied to particular employees' social security numbers (SSNs) contain information that conflicts with the SSA's own records associated with the earmarked SSNs. Or, an employer receives word from its health insurance carrier or pension administrator that the SSNs of certain employees do not square with SSA data. This employer likewise wants to fix the problem and minimize potential fines before ICE shows up.
Assume that in scenarios #1 and #2, the employer first checks its own records and finds no reason such as a clerical error or typo to explain and resolve the discrepancy. The employer then approaches the affected employees, explains that a discrepancy has been noted, and asks the employee to provide an acceptable explanation with documentation that resolves the discrepancy and demonstrates that the individuals in question have the right to work in the United States. Failing the tender of acceptable evidence, the employee will be required to sign a new Form I-9 to verify identity and employment eligibility.
Rather than provide the requested documentation, each of the employees instead informs the employer that s/he has adopted a new name, a new date of birth, a new marital status, or other newly embraced "personal information" and then presents seemingly genuine and relevant original documents of identity and work authorization to confirm the change.
Today, before Assembly Bill 263 takes effect, an employer is allowed to terminate the individual's employment if the submission of inconsistent personal information violated company policies requiring that employees be truthful in all of their dealings with the employer. AB 263 takes away that power to sanction employee dishonesty. Moreover, since the law also prohibits employers "in any manner" from discriminating, retaliating or taking any "adverse action against an employee" who has updated his or her personal information, AB 263 may even prohibit an employer from investigating whether the newly provided personal information is accurate or likewise false or flawed.
Suppose the employee(s) in fact lacked the right to work in the U.S. and had merely purchased a new set of papers from the local fraudulent-document purveyor. Under federal immigration statutes and regulations, an employer may not hire or continue to employee an individual whom the employer "knows" lacks the right to work in the United States. Knowledge of a person's unauthorized employment status can be actual or constructive, as provided in 8 CFR § 274a.1(l):
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.
In other words, an employer who is aware of certain unexplained facts (such as an "update" of "personal information"), but turns a blind eye to circumstances that seem suspicious or at least worthy of further inquiry, will be treated as knowing the facts that a reasonable investigation would have revealed. Thus, if the workers were indeed unauthorized but the employer did not investigate the circumstances out of fear of violating the no-adverse-action prohibition of AB 263, ICE would likely fine the employer on two separate grounds. The fines would be not just for a deficient I-9 but also for the more serious "knowing-continuing-to-employ" offense.
What should the employer do? Depending on the facts at hand, the better approach would likely be to follow federal immigration law which probably preempts and trumps AB 263. See, Arizona v. United States, the Supreme Court case which tossed out almost all of Arizona's SB 1070 on federal-preemption grounds. Employers presented with personal-information updates should be prepared to defend against state charges under AB 263 by maintaining that merely conducting a reasonable investigation of the facts to determine if an employee is authorized to work in the U.S. is not a form of discrimination, retaliation or adverse action under the new California law. But since California is indeed peculiar, employers should also be prepared to fight the good fight if organized labor, state authorities or the courts disagree. At least the weather is nice.
Updated 12-03-2013 at 12:33 PM by APaparelli
[Blogger's Note: Once again, the wonderfully insightful, witty and quirky Nici Kersey -- I-9 and E-Verify expert extraordinaire -- offers the straight scoop on the new E-Verify "lock-down" feature. Though she sometimes publishes unfounded rumors about me (let the record reflect, I've not begun a chauffeur service on the side), she kindly gave me a weekend respite from blogging to share with readers why the E-Verify lock "is a big deal!"]
E-Verify's New Lock ~ Like it or Not, This is a Big Deal!
By Nici Kersey
At around 3:00 eastern time on Monday, my (obnoxiously self-important) inbox exploded. Ping! Ping! Ping! it said. Look at me! I’m bringing you important messages about stuff! Ping! Ping! Ping!
Who died? I thought, then wished I could un-think. Maybe it’s good news. I’ve been selected as an extra for the next Hunger Games movie? Or maybe Cookie Monster did something awesome on Facebook (again).
Nope. This time, it was USCIS with an exciting announcement about E-Verify’s latest enhancement.
One e-mail was from USCIS. The dozens of other messages were from colleagues, clients, and friends spreading the news. It’s like E-Verify got implants, I thought, then wished I could un-think.
Yes, the most exciting news in my social circle (aside from new photos circulating of Angelo that suggest he may be starting a town car service) has to do with E-Verify. I know that this is lame. Despite the rare incidents (like one of my clients semi-publicly calling me “Chick Norris”) that make me feel hip and cool, I have embraced my nerdiness.
Here’s the announcement. (The E-Verify announcement. Not the Paparelli Town Car Grand Opening announcement.)
The enhancement “enables USCIS to lock a SSN that appears to have been misused, protecting it from further potential misuse in E-Verify.”
What does this mean? It means that E-Verify is actually getting better at doing what it’s supposed to do: verify employment authorization. Since its inception, one of the biggest weaknesses of the system has been that it cannot detect identity theft. So long as an employee provided someone’s real data, E-Verify would return an “employment authorized” result, even if that data belonged to the person’s brother, cousin, father, my daughter, or a complete stranger.
Will that still happen? Sure. But not as often. It’s not yet clear what the criteria are for locking an SSN, which is why my implants analogy is appropriate: Will the enhancement pass as genuine, actually improving E-Verify, or will it prove to be more trouble than it’s worth, getting in everyone’s way?
If 25 people suddenly get jobs in the Chicago area, and they all have the same name and SSN, the latest announcement suggests that E-Verify would lock that SSN and would require each employee who used it to either come forward with proof that he/she is the “Real Slim Shady” (viewer discretion is advised) or to effectively abandon his/her job.
But will it go too far? Our bank locks my husband’s debit card every time he tries to make a purchase more than 5 miles from our home. This prompts mass hysteria, as we move so frequently that the security questions he is asked by the bank seem like advanced existential philosophy questions. The name of the street where your doctor’s office is located? Neighbor’s dog’s name? Your boss’s favorite holiday dish? (I’m going to start answering every security question with the word Pumpkin.)
The e-mails from my colleagues were mixed. One said, “This will be all kinds of fun,” dripping with sarcasm. Most clients were excited about the news, though they aren’t looking forward to the increase in mis-matches that they will have to resolve. All of my fake ID vendor buddies, of course, hated the news. (Dear NSA, I hope you are well. This is a joke. Love always, Nici.)
Like it or not, this is a big deal.
It means that we are one step closer to a national ID card and a system in which we can “lock” our own SSNs and identities so that others cannot use them to obtain credit and/or jobs.
It means that people may find out sooner when their own identities have been compromised. Calls to the FTC will probably increase.
It confirms that the federal government continues to work toward enforcement and deterrence, even if comprehensive immigration reform really has died. (We’re not getting any carrots here, just sticks.)
It proves that we are (still) moving toward a law requiring that employers use E-Verify nationwide.
It means that it will become more expensive to get a good fake identity. Those ID sellers who care about their reputations (yes, their reputations for being really good criminals) will have to work harder to satisfy the market, and fake cards are likely to become more expensive. (And there will be a greater demand for cheap, bad cards too, as people may have to buy several cards/identities before one works.)
It may also add to the increasing paranoia of people like my father, who looked into having OnStar removed from his vehicle due to his concern that the government might be using it to spy on him. I implore you to not tell him about this, or my next visit home may find my parents cooking all of their meals over an open flame in the back yard.
For employers, I offer the following suggestions:
- If you already use E-Verify, consider a training session for your team to ensure proper use of the system and to update them on this new development. Focus on non-discrimination training.
- Review your immigration policies and update them as appropriate.
- Make sure you have a protocol in place for handling “tips” about your employees’ work authorization (or lack thereof), as this is likely to lead to calls/e-mails/letters from the “Real Slim Shady” alleging that one of your employees is working under his name. (If your workforce is unionized, however, first check the collective bargaining agreement and talk to your labor counsel -- Seyfarth Shaw's are the best, and Angelo can introduce you.)
- Continue to monitor E-Verify requirements. Consult with immigration and labor counsel about the pros and cons of registering before it becomes mandatory.
* * * Thanks for reading, and have a lovely Thanksgiving.
Updated 11-26-2013 at 02:00 PM by APaparelli
Parole-in-Place - The Immigration PIPsqueak That Could Help Solve the Biggest Obstacle to Comprehensive ReformThe last few weeks have witnessed severe shocks to the health care system known as Obamacare. The President has issued mea culpas for the not-ready-for-prime-time web site, Health.gov, and for his campaign promise to Americans that if they liked their health insurance plan, they could "keep it. Period." Americans who've lost their preferred health plan have also experienced shocks, of the sticker variety, when they learn the price of replacement coverage.
Viewers of Washingtonian pratfalls who look at Beltway antics through the prism of immigration are neither surprised nor amused. There is no surprise to immigration stakeholders that a government web site intended to transform the way benefits requests are managed would fail, for we can spell "Transformation" and "ELIS" -- two immigration software programs with scads of dollars spent and little tangible product to justify the pathetic bang for the buck.
We are also little amused about promises broken, like the one where a newly elected President would address comprehensive immigration reform during his first year in office. When it comes to immigration, the President's effort might better be dubbed, IfOnlyObamaCared. To be sure, he's tried the bully pulpit with no tangible success in the recalcitrant House.
But squawking is not PIPsqueaking - a pragmatic and tangible way for the President to grant the 11 million undocumented among us respite from deportation through expanded use of Parole-in-Place or PIP, the discretionary power of the President under Immigration and Nationality Act (INA) § 212(d)(5)(A) to transform an unauthorized noncitizen in the U.S. into an individual with legal status.
PIPsqueaking for the undocumented is a low-decibel measure that would position the undocumented to qualify for green cards through adjustment of status in the future under any of the otherwise available family- or employment-based immigrant visa categories. All that's required would be to grant PIP concurrently with another § 212(d)(5)(A) benefit known as "advance parole" and with the issuance of an employment authorization document or EAD. This would allow the undocumented to work and pay taxes and to travel abroad for legitimate business or personal reasons, and then after reentering the U.S. to be essentially cleansed of such prior immigration violations as entry without inspection or failure to depart when required.
A PIP/advance-parole/EAD three-step wouldn't fix everyone's status violations (it wouldn't absolve those who have accepted unauthorized employment unless they are the spouse of a citizen or otherwise fall within a forgiveness provision). But it would go a long way to help the undocumented live in this country, under humane conditions, by giving them a chance to earn a living, buy a house or car, purchase insurance and care for their kids.
To its credit, the Obama Administration has approved PIP for citizens of the Commonwealth of the Northern Mariana Islands whose work permits would otherwise have expired. More broadly, just last week the President's immigration-benefits agency, U.S. Citizenship and Immigration Services (USCIS), to its credit, issued a policy memorandum authorizing PIP benefits for the undocumented relatives (parents, spouses and children) of "active members of the U.S. Armed Services, [as well as] individuals serving in the Selected Reserve of the Ready Reserve and individuals who have previously served in the U.S. Armed Forces or Selected Reserve of the Ready Reserve." USCIS approved PIP eligibility while mindful that active and former U.S. military personnel "face stress and anxiety because of the immigration status of their family members in the United States." Thus, the USCIS memo decreed:
Absent a criminal conviction or other serious adverse factors, parole in place would generally be an appropriate exercise of discretion for such an individual.
Certainly the children of the undocumented "face stress and anxiety because of the immigration status of their family members in the United States." So as I've urged before, it's time for the President to reclaim his mojo:
The President's choices are clear. He. . . . can use his substantial executive authority over immigration policy and make interim changes that alter the facts on the ground. He can establish by rulemaking a registration system that allows the undocumented to come forward, be screened for criminal history and security threats, and grant them temporary work permission until Congress gets to the heavy lifting on CIR.
Had he exercised more mojo than compromise on health care, he would have instead pushed for a simpler "Medicare for all" program that would not have required entanglement and enmeshment with insurance companies that cancel policies. Nor would he have needed a highfalutin web site for Americans seeking insurance to career through the myriad choices of coverage under the new health-care exchanges.
Had he pushed on immigration reform earlier in his first term, he'd not be facing the dirge of mourners for the failure of comprehensive immigration reform today. America loves to give second chances. This is Barack Obama's. PIPsqueak your way to immigration salvation, Mr. President.
Updated 11-18-2013 at 03:52 PM by APaparelli
The Immigration-Abandonment Ploy -- Fallout from a Fiddling Congress and Bickering Allies
The times they are a-mournin' for proponents of immigrant rights and immigration reform. While Pope Francis shows the world how to love by embracing and praying with a tumor-scarred man, immigrants-rights activists and immigration-reform pragmatists are at war among themselves over tactics in the battle to achieve just solutions to our nation's dysfunctional immigration problems. They who should be allies hurl vitriol and worse at one another, as Republicans in the House and outside the chamber say that even piecemeal solutions won't occur before the current session ends, but may surface in 14 months.
Meanwhile, as the House fiddles and change-agents fuss, the "Great Chopper" that is America's immigration bureaucracy continues to disaggregate lives, businesses and dreams, turning them into mourning mush. No, I'm not talking about the immigration-prison/deportation industrial complex which whirs at grotesquely efficient and fevered speeds -- that topic is grist for another post.
Rather, today's blog riffs on the theme of immigration inanity played out in my last post and in several others ("Immigration Good Behavior -- a Riddle Riddled with Riddles," "Immigration Absurdity: You Can Work Here But You Can't Be Here," and "Immigration Indifference - The Adjudicator's Curse").
Today's asininity is all about abandonment, an immigration-agency notion confected, mostly without stakeholder input, by work-shirking bureaucrats rather than through the orderly, judicially-envisioned modus operandi of enacted legislation and promulgated regulations.
Immigration abandonment holds that a foreign entrant who applies to extend or change nonimmigrant visa status in the U.S., and who has paid almost 300 bucks in filing fees just to make the ask, will not receive a decision on the merits but instead be peremptorily denied if s/he leaves the U.S. before an often dilatory adjudicator gets around to considering the application.
Immigration abandonment also plays out in the process of applying for a green card. Although the latter form of short-changing is moistened with the sprinkled holy water of an actual agency regulation (8 CFR § 245.2(a)(4)(ii)(A)-(D)), an adjustment of status applicant -- like his nonimmigrant cousin -- is still treated as having relinquished the desire to become a permanent resident if s/he leaves the U.S., however temporarily, without special dispensation, notwithstanding that the departing individual has no desire to forswear permanent residence and despite the payment of up to $2,070 in application fees.
In the case of the green card applicant, immigration abandonment can lead -- at best -- to delay and squandered filing fees, and -- at worst -- to ineligibility. The immigrant visa quota may have closed or retrogressed in the interim, thereby precluding immediate reapplication for adjustment of status. Or, the factual basis or legal grounds to adjust status may no longer exist; the American Dream of permanent U.S. residence and ultimately citizenship thus evaporating into the ether created by work-avoidant immigration officials.
The consequences may be equally or more tragic in the nonimmigrant context whenever a temporary entrant seeks to extend/change visa status in the United States but needs to depart the U.S. while the application is pending. To understand why, the reader must first consider the supposed rationale and contorted logic served up by U.S. Citizenship and Immigration Services (USCIS) in this typical formulation:
The astute reader will have noted some whopping non sequiturs in the USCIS's explanation. Submission of either a timely request to extend/change status or an untimely request caused by extraordinary circumstances beyond the applicant's control (as permitted by regulation) is a reflection of behavior demonstrating a desire and intent to play by, rather than flout, the rules. Moreover, departing the U.S. need not necessarily be construed as a failure to maintain the "previously accorded nonimmigrant status." It may signify nothing more or less than a departure from the country.
What the USCIS's immigration-abandonment ploy really reveals is an agency's acceptance of money under false pretenses in return for a promised service (the adjudication of a request for an immigration benefit) that is never delivered. Some would call that fraud. It is worse than fraud, however, because it also involves a waste of government resources and the utter disregard of a very relevant statute.
The statute is Immigration and Nationality Act § 212(a)(9)(B)(iv) [8 U.S. Code §1182(a)(9)(B)(iv)]. This law allows a law-abiding foreign citizen to avoid temporarily the imposition of the penalties of visa voidance and the three- and ten-year bars to reentry for his or her "unlawful presence (UP)" in the United States.
UP arises when an individual stays in the country longer than officially permitted, as specified in a government document containing a date-certain deadline imposed by the Attorney General or his statutory successor, the Secretary of Homeland Security. This statutory postponement or "tolling" of any period of UP is allowed in the following situation:
Tolling for good cause.--
In the case of an alien who--
has been lawfully admitted or paroled into the United States,
has filed a nonfrivolous application for a change or extension of status before the date of expiration of the period of stay authorized by the Attorney General [or Secretary of Homeland Security], and
has not been employed without authorization in the United States before or during the pendency of such application,
[then] the calculation of the period of [UP] time specified . . . shall be tolled during the pendency of such application, but not to exceed 120 days.
When USCIS takes money without providing a decision on the merits of the change or extension of status application, then a consular officer deciding whether to issue or refuse a nonimmigrant or immigrant visa must do what the USCIS adjudicator failed to do. The consular officer must determine whether the change/extension of status application was in fact "nonfrivolous" in order for UP to be tolled.
The failure of one officer to do his or her duty thus engenders government waste when another officer in a different department must deploy scarce resources and review the application (for no additional fee). Had the USCIS not relied on the immigration-abandonment notion as a way to shirk work, and had the adjudicator approved the application, the approval would essentially confirm that the application to extend or change status was indeed "nonfrivolous," as that term is defined:
To be considered nonfrivolous, the application must have an arguable basis in law and fact and must not have been filed for an improper purpose (e.g., as a groundless excuse for the applicant to remain in the U.S. to engage in activities incompatible with his/her status). To find an application nonfrivolous, it is not necessary to determine that the INS [USCIS] would have ultimately ruled in favor of the alien.
9 Department of State Foreign Affairs Manual § 40.92 N5 “Tolling” for Good Cause
* * *
So, no matter whether Congress dithers and dallies, and reformers on the left bicker and bite, the USCIS -- the adjudicative arm of the Great Chopper -- must be retooled. The agency must do its job and decide applications for which fees have been fully paid on their merits. USCIS must abandon immigration abandonment.
Updated 11-12-2013 at 11:58 AM by APaparelli
Four Post-Infosys Strategies for Corporate Customers and Consultants to Minimize Immigration Risks
by Angelo A. Paparelli
Samuel Herbert, Her Majesty's Home Secretary from 1931-32 (the British equivalent of the U.S. Secretary of Homeland Security), could well have been speaking about two recent immigration-related events when he quipped that "bureaucracy" is "a difficulty for every solution."
One is an October 30 Settlement Agreement between Indian It consulting giant, Infosys, and the U.S. Attorney for the Eastern District of Texas. The other is an October 18 decision by U.S. federal district court judge, William J. Martini, involving the U.S. Department of Labor (DOL) and CAMO Technologies, a much smaller Indian IT consulting firm.
Both reflect a victory, of sorts, for Indian IT firms over U.S. immigration bureaucrats and enforcement agents, and both shed light on the little-discussed crossroads where ambiguous immigration rules bisect the relations between corporate customers and their technology consultants.
The Infosys settlement involved a simple horse trade. Infosys would pony up $34 million and admit paperwork violations of the Form I-9 (employment eligibility verification) rules while the U.S. Attorney would drop civil and criminal charges that the Tech firm -- when placing its Indian employees at U.S. customer work sites -- improperly used the B-1 business-visitor visa in lieu of the more costly, slow and burdensome H-1B visa category for professional workers in specialty occupations.
CAMO Technologies resolved a dispute with DOL over whether the company was merely negligent (the court so ruling) or willful or reckless in failing to confirm that its corporate customers had posted notices at their worksites that the consulting firm's H-1B employees would be sited there.
Why did the U.S. Attorney drop civil and most criminal charges against Infosys when the prosecutor believed the company had engaged in widespread immigration fraud? And why did Judge Martini throw a cold cocktail in the DOL's face in refusing to debar CAMO from further use of the immigration laws to sponsor temporary workers and green-card aspirants?
The simple answer is that immigration laws are complex and the bureaucratic rules interpreting them are too often ambiguous or impractical and therefore difficult to honor or to prosecute.
In the Infosys matter, prosecutors probably could not prove that "coding and programming" tasks, which ordinarily require an H-1B work visa, would be unlawful if performed by a business visitor under the so-called BILOH (B-1 in lieu of H-1) subcategory. In CAMO Technologies, the DOL could not persuade the court of its contention that the failure to post notices announcing the placement of H-1B workers at customer sites violated the agency's regulations. CAMO maintained that the DOL regulations only required proof that the vendor had asked its customers to allow posting but that the customers refused.
The customer-vendor relationship is fraught with immigration perils for both parties, as I noted in two articles co-authored with Ted Chiappari,“New Corporate Procurement Strategy: Minimizing Immigration Risks From Service Providers," New York Law Journal (June 29, 2009) and "Professional Employer Organizations and Uncharted Immigration Risks," New York Law Journal (December, 2010). But despite the lack of clarity or business practicality from bureaucratically imposed visa mandates, employers and corporate vendors can take steps to avoid brand-damaging assaults by enforcement agents and costly probes by DOL investigators. Here are four:
Engage Outside Immigration Experts to Assess Your Risks. As part of its settlement, Infosys must hire external immigration experts and must submit more explicit business-visitor invitation letters to the State Department in order to minimize the recurrence of alleged immigration violations. Moreover, Jay Palmer, the Infosys employee who blew the whistle on the alleged transgressions stands to receive 15% to 25% percent of the $34 million settlement under the False Claims Act. Why incentivize employees to file charges of immigration wrongdoing and wait till these nasty prescriptions are shoved down your throats? Instead, corporate customers and their service providers should recognize that other companies are already under scrutiny. Each party should therefore proactively engage outside immigration counsel to assess the risks and help avoid or minimize potential brand damage, disruption of key contracts, and havoc-wreaking consequences to business imperatives, not to mention government fines, debarment and criminal prosecution.Try, together, to follow the rules. Most corporate customers are astonished to learn that the law of vendor relations often imposes immigration-law encumbrances -- the obligation to post notices visible to their employees at the company's worksite or on its intranet and to respond accurately when vendors ask if there have been any layoffs of the customer's employees. Yet, DOL rules are explicit. All employers who place H-1B workers at customer sites must post such notices and H-1B dependent employers must inquire about such layoffs and refrain from assigning their specialty-occupation workers to customer jobsites if the customer has laid off its own workers in similar jobs within 90 days before until 90 days after a subject layoffs. While the posting obligation imposes no penalty on corporate customers under DOL H-1B regulations, the Immigration and Nationality Act (INA) does, as confirmed in this DOL presentation, “The Employment of Non-Immigrants on H-1B Visas” (slides 42-43), the INA provides for "Super Penalty" fines of $35,000 on customers and H-1B dependent vendors alike each time a prohibited layoff occurs. Whether customers are immune or directly exposed to their vendors' H-1B liabilities, customers should cooperate to allow service providers to comply with immigration requirements. If the customer interferes or fails to cooperate, the vendor conceivably could claim that the customer impeded the vendor's performance under the parties' service agreement by blocking or rendering impossible the vendor's compliance with immigration law. Worse yet, the federal government could assert that the vendor and customer, both aware of their respective legal duties, willfully flouted them, and thus criminally conspired to employ "unauthorized" foreign workers.Where the immigration rules are ambiguous or unworkable, show good-faith efforts that substantially comply. As the Infosys and CAMO Technologies matters demonstrate, some government investigations and prosecutions can be defeated or their adverse effects diminished by pointing out flaws or uncertainties in the immigration rules or by trying to comply substantially with impractical or infeasible agency-concocted requirements. Perhaps a vendor could post electronic notices of H-1B placements on its public corporate web site, and merely post "routing" notices at customer locations directing persons to the vendor's internet page where the legally required text is fully provided. That may be seen by an administrative law judge or federal court as doing more than legally mandated and thus in substantial compliance with agency rules.Where the immigration rules are downright unlawful, challenge them in court or be prepared to defend your behavior and legal interpretations if the government takes action. Camo Technologies persuaded Judge Martini to reverse the DOL's ruling against the company. Infosys presumably adopted a full-court press by mounting a campaign in the U.S. Attorney's Office to demonstrate the weakness of the government's legal position and in reminding local, state and federal government leaders that prosecution of this large Indian company could hurt jobs and the economy. In simple terms, both companies fought back. Corporate customers and consultants should copy maneuvers from this playbook. The immigration rules of the road are mind-bendingly complex. Government prosecutors, unschooled in the arcana of immigration, must rely on immigration bureaucrats to teach them the law, the same agency employees who created and imposed the ambiguities and impracticalities that customers and contractors are expected to follow.
* * *As the battle continues for ever greater corporate efficiency and profitability, fueled by the innovations and bright ideas of the consulting industry, customers and vendors alike must recognize that their business objectives can be waylaid by zealous prosecutors and bureaucrats. Forewarned is forearmed. Don't wait for the knock on the door. Be ready to face "the difficulty for every solution."