There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

Today, recruiters, human resource managers, and small business owners utilize the Internet to recruit new employees. Online recruiting is cheap, efficient, and reaches a much broader audience than traditional forms of media. While there are numerous advantages to employing a professional staffing agency to locate prospective employees through the Internet, many employers choose to self-publish want ads through popular websites like monster.com or craiglist.org. Self-publishing online job posting gives the employer complete control over when, where, and how long a post will be visible to the public. Ultimately, do-it-yourself recruiting can be personally tailored to suit a particular employer’s needs.

But recruiters beware. The Internet is much more sophisticated than a virtual corkboard. Keywords and phrases in your job listings can be tracked and monitored by government software, then stored in databases. Recently, the Civil Rights Division of the Office of Special Counsel (OSC) released a Best Practices notice for online job posting. Whether this notice foreshadows future litigation over civil rights violations in hiring practices is yet to be determined; regardless, the message is clear, employers need to exercise caution when recruiting online because the OSC is monitoring online want ads.

Immigration laws prohibit the use of discriminatory language regarding U.S. Citizenship, lawful permanent residence, citizenship status, or national origin unless required by law, regulation or executive order. Curiously, the OSC notice was released shortly after a handful of states attempted to curtail the rights of Deferred Action Childhood Arrival qualifiers to obtain state identification (see our previous post here). There is no data revealing any increase in discriminatory language found in online job postings, but a simple keyword search on either monster.com or craigslist.org reveals numerous non-compliant ads. For instance, if the word “citizen” is entered into Craigslist, ads for dishwashers, personal assistants, security guards, and caregivers pop up. Each ad contains some version of the following discriminatory language that the OSC notice clearly forbids pursuant to the Immigration and Nationality Act at § 1324b that prohibits discrimination based on the citizenship status or national origin in the hiring, firing unfair document practices (“document abuse”) during employment eligibility verification process, and retaliation:

•  “Only U.S. Citizens”
• “Citizenship requirement”*
• “Only U.S. Citizens or Green Card Holders”
• “H-1Bs Only”
• “Must have a U.S. Passport”
• “Must have a green card”

One explanation presented by the OSC for the common use of such language is the misinterpretation of federal employment laws. Employers are not limited to the recruitment of U.S. citizens. In fact, we recently published an article on the proper method of verifying the legal employment status of refugee/asylees. Due to the complexity of adhering to the legal requirements of recruiting, hiring, and employing individuals in today’s diverse workplace, employers should seek the professional guidance of an attorney. The cost savings and convenience of self-publishing job postings are heavily outweighed by the potential financial penalties and negative publicity of losing an anti-discrimination lawsuit.

Our office has the experience and successful track record necessary to protect the interests of your enterprise.  For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

“Homeland Security Investigations is committed to holding businesses and their managers accountable when they knowingly hire an illegal workforce,” –John Kelleghan, Special Agent in charge of HSI Philadelphia.

Homeland Security, the FBI, and ICE did much more than hold GPX/GPX, USA, a seismic surveying company and their field supervisor, Donald Wiggill, “accountable,” by charging the company with a total maximum fine of $10 million, a probation term of five years on each count, and a special assessment totaling $8,000; Wiggill faces an unconscionable indictment of 100 years in prison on all 20 counts, a fine of $5 million, a supervised release term of 60 years, and a special assessment of $2,000. The Texas based company failed to verify the immigration status of nineteen employees and did not prepare the required Form I-9 and supporting documentation concerning the immigrants’ authorization to work in the United States.

John Kelleghan of Homeland Security further justified the Philadelphia HSI decision to levy such harsh punishment for I-9 non-compliance saying, “HSI and our law enforcement partners will continue to ensure that employers follow our nation’s hiring laws, which ultimately protect job opportunities for the nation’s legal workers, and levels the playing field for those businesses that play by the rules.”

The proportionality of the punishment sought for the crime is extremely shocking. Our blog has recently covered the penalties imposed upon, HerbCo, Chipotle, and most recently ABC Tree Professionals, which pale in comparison to the punishment GPX is now facing.

GPX is being treated like a national security threat for mishandling nineteen employees Form I-9s. The difference between thousands of dollars versus millions of dollars in fines, in addition to 100 years of jail time, is the involvement of the FBI and the Homeland Security. GPX is charged with harboring and transporting illegal aliens and conspiracy to commit those offenses as outlined in an indictment by the U.S. Attorney for the Middle District of Pennsylvania, Peter J. Smith. Whether GPX was honestly aware of their employees’ immigration status is still unknown, however proper planning and implementation of I-9 compliance would have saved the company millions in civil penalties and avoided a hundred years of jail time. With the stakes elevated so tremendously high by this multi-departmental crackdown on workforce compliance –  who can afford not to get their legal documents in order?

To protect your business and your employees please contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.