Monday, August 1, 2016

Employers Awaiting the Results of an I-9 Audit Initiated After November 2, 2016 May Be in For an Unpleasant Shock

An obscure provision in the Bipartisan Budget Act of 2015, which took effect November 2, 2015, dramatically changed the formula for calculating inflation adjustments to existing federal penalty schedules, including the penalties for knowingly hiring or continuing to employ an undocumented alien worker and for failing to prepare and maintain properly completed USCIS I-9 paperwork forms. On June 16, 2016, the U.S. Department of Justice (DOJ) published an interim final rule implementing the new formula beginning with fine citations issued on and after August 1, 2016.   

The new penalty range for paperwork violations has been reset in the range of $216 to $2,156 per non-compliant I-9 Form.

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Thursday, March 17, 2016

Employer Regulatory Alert


Large technology employers appear pleased as punch with the new DHS final rule authorizing an extension of up to 24 months of optional practical training for F-1 student visa holders with STEM degrees published in the Federal Register of March 11, 2016.  As finalized, the new rule provides insurance  against the loss of the F-1 STEM student's services should the  employer’s H-1B sponsorship petition on behalf of  the worker fail to be selected by DHS in the annual H-1B lottery.   The availability of the STEM OPT 24-month extension buys not only continuing employment authorization but the opportunity to participate in two more annual H-1B lottery drawings.  It may also provide sufficient time, depending on the circumstances, to sponsor the worker for permanent resident status.  

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Monday, January 11, 2016

IEEE-USA Launches Petition Campaign Urging DOJ to Investigate US Companies Who Outsource IT Functions to Contractors Employing H-1B Visa Holders

On January 7, 2016,  IEEE-USA -- the lobbying arm of the Institute of Electrical and Electronics Engineers -- launched an on-line petition drive to place pressure on The U.S. Department of Justice Office of Special Counsel for Immigration-Related Discrimination to investigate U.S. employers who have outsourced IT functions performed by U.S. workers to foreign workers employed in the U.S. and abroad either directly or indirectly through IT contractors.

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Tuesday, December 22, 2015

US Appeals Court Hands DOL a Major Loss in LCA Enforcement Case

For over 20 years, DOL has insisted that it may investigate the whole of an H-1B employer's LCA compliance practices when it finds reasonable cause to believe a violation has been committed based on the allegations contained in an LCA complaint filed by or on behalf of an aggrieved party or organization -- no matter how limited the violation alleged or the 12-month limitations period governing the complaint.  In a case of first impression applying standard rules of statutory construction, on December 14, 2015, a divided panel of the United States Court of Appeals for the Eighth Circuit ruled 2-1 that DOL had exceeded its statutory authority by insisting from the outset upon the conduct of an over-broad investigation of the employer's compliance with all of the LCA attestation regulations despite the limited nature of the violation alleged by a single H-1B worker and the limitations period applicable to that alleged violation.  As a consequence, the majority vacated the judgment of the district court affirming the final DOL order directing the employer to pay 52 H-1B workers more than $360,000 thousand in back wages plus pre- and post-judgment based on violations discovered because of the unauthorized scope of the investigation from the outset.   See Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, Circuit/1720691.html#sthash.g5wXP9RU.dpuf.  

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