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By Bruce Buchanan, Sebelist Buchanan Law
Although the Office of Chief Administrative Hearing Officer (OCAHO) found Metropolitan Enterprises committed 189 violations and were fined $151,200, it could have been worse as OCAHO dismissed 20 allegations for the failure of ICE to establish employment during the audited period. U.S. v. Metropolitan Enterprises, Inc., 12 OCAHO no. 1297 (March 2017).
The case started in the usual way with Immigration and Customs Enforcement (ICE) serving a Notice of Inspection (NOI), seeking I-9 forms for current and terminated employees for a two-year period. Nine months later, ICE issued a Notice of Intent to Fine with Count I alleging 156 violations for various errors in completion of the I-9 forms – no employee signature, no employer signature, blank section 2, and no status box checked, and Count II – failure to prepare/present 53 Form I-9s.
ICE sought a penalty of $195,649 based upon a baseline penalty of $935 (over 50% of the I-9 forms were in error). It aggravated the penalty by 5% for the seriousness of the violation and mitigated the penalty by 5% for good faith. ICE also alleged five employees were undocumented and aggravated by 5% for those 5 Form I-9s.
Although ICE proffered a company payroll register for the two-year period of the NOI, this document did not provide hiring and termination dates. Without such, it is impossible to determine whether Metropolitan was required to retain the I-9 forms of the terminated employees, (Remember if the employee has worked there for over three years, an employer is only required to retain the I-9 form for a year from termination). The ALJ stated “mind reading is not an accepted tool of judicial inquiry.” Despite this shortcoming, OCAHO could discern the applicable dates for 189 employees out of the 209 employees.
However, OCAHO could not discern the hiring and termination dates of 20 employees; therefore, it could not determine whether Metropolitan was required under the law to retain their I-9 forms. Based on this, OCAHO dismissed 20 of the allegations.
Concerning the mitigation of the penalties, OCAHO did not find good faith based upon “wide spread, fundamental errors, which as a whole, have undermined the purpose of the employment verification system.” Furthermore, OCAHO declined to find five employees were undocumented because the ICE auditor did not identify the databases that he searched nor provided any details regarding how he conducted the searches.
OCAHO concluded the penalties proposed by ICE “while arguably defensible, are slightly disproportionate to the overall extent of the violations.” Thus, OCAHO set the penalties at $800 per violation rather than $935 per violation.
This decision was interesting because it detailed ICE’s failure to provide the appropriate facts to established some of the allegations and OCAHO’s astonishment that ICE considered Metropolitan’s conduct would warrant good faith mitigation.
When USCIS announced several weeks ago that premium processing for Fiscal Year 2018 cap subject H-1B petitions would be suspended for the six month period between the beginning of the acceptance period for these petitions on April 3, 2017 and the beginning of the new fiscal year on October 1, 2017, there was something of at least a mini-uproar in the media.
At the time, I regarded this as overblown, if not just merely a tempest in a teapot, and I suggested that the ostensible reason for this temporary suspension of Premium, namely to shift agency resources over to reducing the unconscionably long backlogs in regular H-1B processing, now taking as long as eight months from filing, made sense and should be taken at face value.
However, on March 15, 2017, USCIS came out with another announcement which was remarkable, not for what it says, but what it leaves out, compared to last year's similar. but not identical. announcement,
This year's announcement, for the reasons discussed below, may be a cause for much greater concern for the future viability of the H-1B program, as well as increased hardship and lack of fairness for cap subject H-1B petitioners and prospective H-1B employees in this year's expected "lottery".
Remarkably, what could be a crucial difference in this year's USCIS announcement compared to the ones for last year and previous years when the pathetically small cap subject annual quota limit of 65,000 visas (85,000 for US master's degree holders) was also oversubscribed (as this years almost certainly will also be) has gone almost entirely unnoticed by the media, and even by most, if not all H-1B experts. This is at least according to my own Internet research.
To borrow the youngest child's traditional question from the coming Jewish Passover season, What makes this year's USCIS H-1B cap "lottery" announcement different from all other previous H-1B "lottery" announcements?
The answer, my child, is that all of the previous lottery announcements stated that USCIS would accept all petitions arriving at the agency during the entire first business week of the application period, not just on the first day, which this year is on Monday, April 3.
This year's announcement, as will be seen below, omits this promise and says merely that USCIS will accept petitions beginning on April 3, and will notify the public when the cap has been reached.
Judging by previous years, it is almost inevitable that the cap will be reached on the first day of acceptance. So what will happen with estimated thousands, or tens of thousands of other cap subject H-1B petitions which will almost certainly arrive later that week, between April 4 and April 7, due to factors beyond the petitioners' control, such as bad weather, inevitable flight delays, or other similar reasons.
Will they be rejected and returned?
But that is not the only thing that could make this H-1B cap year different from all other such years. In all other years, USCIS announced that if the cap was oversubscribed, there would be a "computer-generated lottery system" (to quote last year's announcement, see below).
This year's announcement says nothing about a lottery, leaving open the possibility that USCIS might be planning to use a different selection system about which nothing has been announced whatsoever, and which, conceivably, could be used to "rig" the H-1B filing selection system for or against certain types of H-1B petitions, just as has been proposed in certain bills that are introduced in Congress with some regularity, but have never been passed.
Will the heavy hand of the Trump administration, which has not exactly shown a welcoming attitude either to the H-1B visa as a whole, or to the highly skilled South Asian professional workers who make up a large percentage of the beneficiaries of this visa, try to tilt the scales of the selection process in order to pick the immigration priorities which Trump and two of his top immigration advisers, Stephen Bannon and Jeff Sessions (not to mention other top advisers such as Kris Kobach and Stephen Miller) have previously made clear that they subscribe to?
This possibility cannot entirely be ruled out.
To be continued in a forthcoming comment.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping skilled and professional immigrants from diverse parts of the world obtain work permits and green cards.
Roger's practice has been heavily concentrated in H-1B for most of the above period, and it is now. His email address is email@example.com
Updated 03-29-2017 at 11:03 AM by ImmigrationLawBlogs
© Montgomery County Police
On March 16, 2017, two young men from Central America allegedly pushed a 14-year-old girl into a boy’s bathroom at a high school in Montgomery County, Md., and then raped her in one of the stalls. Some claim that Maryland’s sanctuary policies led to this brutal crime.
Maryland’s policies towards illegal immigration have made the state a popular destination for undocumented immigrants. It has been estimatedthat 250,000 undocumented immigrants lived in Maryland in 2014. But Maryland is not a sanctuary state … yet.
When President Donald Trumpissued an Executive Order declaring that sanctuary jurisdictions will lose federal funds, the County Council for Montgomery County responded with a statement assuring county residents that “County police do not enforce federal immigration law.” The Council also noted that, “executive orders are subject to public scrutiny and legal challenges.”
And only four days after the young girl allegedly was raped by undocumented immigrants, the Maryland House of Delegates passed House Bill 1362 “to restore community trust in Maryland Law Enforcement by clarifying the parameters of local participation in federal immigration enforcement efforts.”
Read more at
Published originally on the Hill.
About the author.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.
Updated 03-28-2017 at 11:57 PM by ImmigrationLawBlogs
By Bruce Buchanan, Sebelist Buchanan Law
The Immigrant and Employee Rights Section (IER) of the Justice Department’s Civil Rights Division has reached a settlement agreement with Pizzerias, LLC, a pizza restaurant franchisee with 31 locations in Miami, Florida, where Pizzerias will pay a $140,000 civil penalty. The agreement resolves the IER’s investigation into whether Pizzerias violated the Immigration and Nationality Act (INA) by discriminating against work-authorized immigrants when checking their work authorization documents.
The investigation concluded Pizzerias routinely requested that lawful permanent residents produce a specific document – a Permanent Resident Card (green card) – to prove their work authorization, while not requesting a specific document from U.S. citizens. This is referred to as document abuse. Lawful permanent residents may choose acceptable documents other than a Permanent Resident Card to prove they are authorized to work. The antidiscrimination provision of the INA prohibits employers from subjecting employees to unnecessary documentary demands based on citizenship or national origin.
Under the settlement, Pizzerias must pay a civil penalty of $140,000 to the United States, post notices informing workers about their rights under the INA’s antidiscrimination provision, train their human resources personnel, and be subject to departmental monitoring and reporting requirements for two years.
The first two settlements by IER in Trump administration seem to reflect that the IER will continue to aggressively pursue employers that violated the INA.
by Chris Musillo
In 2009, a mere 9,000 H-1Bs were received in the first month of H-1B processing. It would be 264 days before the H-1B cap was reached. In 2010, it took 300 days until the H-1B cap was reached. In 2011, there were 236 days between the April 1, 2011 cap opening and the November 23, 2011 cap being reached. Not coincidentally, the US employment rate from 2009-2011 ranged between eight and ten percent.
On the other hand, the H-1B cap was reached on the very first day in 2007, 2008, each year since 2013, mirroring the low unemployment rate.
The lack of H-1B petition filings in years when the unemployment rate is high is compelling evidence against the argument that internationally-trained workers are being used to displace American workers and lower US workers' salaries.
Why? Because if H-1B visa labor was being used primarily to lower US workers’ salaries, then H-1B filing numbers would not correlate with US unemployment rates. If anything, the reverse would happen because the incentive to reduce workers’ salaries is likely greater in a recessed economy, not less.
Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook and follow us on Twitter.
Updated 03-27-2017 at 09:35 AM by CMusillo