USCIS gets flexible on I-9 Process, but Employers must stay Vigilant

The I-9 process continues to be the bane of HR existence. Recent accommodations for remote work environments,  closed driver’s license agencies, and USCIS delays in printing work permits and green cards are definitely appreciated and helpful, but they also make the process more confusing.  Employers are beginning to worry about how they will catch up on viewing all of the original documents they saw remotely during the pandemic, in the USCIS-designated 3-day time frame once their companies return to the office. Meanwhile, I-9 audits and worksite enforcement actions are continuing apace. While following all of the new guidance, employers must also be sure to stick to the basics. Continue reading “USCIS gets flexible on I-9 Process, but Employers must stay Vigilant”

PERM Gets Rough in an Uncertain Job Market

Employers who may be trying to proceed with PERM applications for foreign national workers are in an uphill battle. With layoffs, furloughs and unemployment at all time highs, the Department of Labor is on high alert for unsuspecting PERM employers who are trying to do the right thing under difficult circumstances.

Employers who have H-1B or other workers with limited time on their nonimmigrant status, don’t have the luxury of waiting until the job market improves to begin PERM applications for their employees. For H-1B or L-1B workers in their final year or two of nonimmigrant visa eligibility, PERM is a necessity or they will have to return to their home countries. Continue reading “PERM Gets Rough in an Uncertain Job Market”

F-1 Student Ban from 100% Remote Education Rescinded

On July 14, 2020, the Trump Administration rescinded SEVP guidance issued last week,  which forbid F-1 students from attending universities that were planning to be 100% remote during the fall 2020 semester.  With the rescission, schools may now revert to following  the SEVP March 9 Broadcast Message: Coronavirus Disease 2019 and the March 13  COVID-19: Guidance for SEVP Stakeholders . Read more about this important development in our education law blog, UpdateED.

 

 

 

ICE Bars F-1 Students from 100% Remote Programs for Fall Semester

On July 6, 2020 the  Student and Exchange Visitor Program (SEVP) provided long awaited guidance for the fall 2020 semester. In an unexpected about face from guidance issued in March 2020 at the height of the COVID-19 response effort by higher education,  SEVP has determined that foreign students on F-1 visas cannot attend universities that will be 100% remote during the fall 2020 semester. Continue reading “ICE Bars F-1 Students from 100% Remote Programs for Fall Semester”

Supreme Court Ruling Upholds DACA Program

On June 18, 2020, a narrowly divided Supreme Court of the United States held that the Court can review the Deferred Action for Childhood Arrivals (DACA) program and that the Trump administration’s decision to terminate the program was arbitrary and capricious under the Administrative Procedure Act. Chief Justice John G. Roberts Jr. wrote the 5-4 decision in Department of Homeland Security v. Regents of University of California. DACA grants undocumented immigrants brought to the United States as children permission to live and work lawfully.

To read the full text of this Duane Morris Alert, please visit the firm website.

Universities Weigh Impact of Latest Travel Ban on Certain Chinese Graduate Students and Post Docs

The White House has issued a new travel ban blocking Chinese nationals associated with entities that are part of China’s “military-civil fusion” strategy from obtaining graduate level Student (F) or Exchange Visitor (J) visas. The ban went into effect on June 1 and has no end date.  The ban specifically references those visa applicants who are currently outside the United States, but does not exclude the possibility that the estimated 3000 Chinese nationals, already studying in the U.S. who meet the criteria of the executive order, could have their existing visas revoked.  Read Valentine’s full post on the Duane Morris Education Law Blog, UpdateED.

TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC

On June 4, 2020, the U.S. Department of Labor (DOL) rescinded deadline extensions it had instituted on March 20 to help employers meet PERM requirements during the pandemic (https://www.foreignlaborcert.doleta.gov/pdf/OFLC%20COVID-19%20FAQs%20Round%204.pdf). Unfortunately, employers sponsoring foreign national employees for PERM labor certification-based green cards will for now receive no further accommodations from the DOL during the COVID-19 pandemic. The DOL’s responsibility is to ensure the protection of American workers, so taking a hard line on foreign national sponsorship is not unexpected in light of high unemployment numbers.

Despite stakeholder efforts to receive an extension of these accommodations, the DOL is at this time not willing to provide further accommodations. This means employers must now (a) respond to DOL inquiries within the designated deadline, but on a case-by-case basis may request an extension on or before the deadline; and (b) must conduct their PERM recruitment within the normal regulatory 180-day window. Continue reading “TOUGH LUCK FOR PERM LABOR CERTIFICATION-BASED GREEN CARD SPONSORS DURING THE COVID-19 PANDEMIC”

Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19

Rapid changes in remote work requirements and availability are playing havoc with the PERM process for employers (the process under which employers must conduct a test of the U.S. labor market as part of the green card process for their foreign national employees).  Due to rising unemployment and availability of U.S. workers, increased audits and scrutiny  by the DOL are expected in the short and long term, making it imperative that employers have all of their I’s dotted and T’s crossed when completing the PERM steps.

Nowhere are the details more important than when completing the required PERM “Notice of Filing” step. Unless there is a bargaining representative based on a collective bargaining agreement, an employer must post a notice of the job opening, commonly referred to as a “Notice of Filing,” for the employees at the worksite to see for 10 consecutive business days, commonly called a “wall” Notice of Filing. Employers who also run electronic or print in-house media must also, i.e., not as an alternative to a wall notice, post the notice there in accordance with their normal procedures in place for recruiting for similar positions.

During the COVID-19 pandemic, many employers have shut down corporate office operations and are requiring their employees to work remotely. Some employers have already publicized plans to keep employees working remotely or at least allow them to do so indefinitely, to be able to reduce corporate office space and to turn what is left into mere meeting and conference space, thereby saving overhead cost. https://www.nytimes.com/2020/05/12/nyregion/coronavirus-work-from-home.html

Continue reading “Posting a PERM Notice of Filing If Employers Make Remote Work Permanent Even After COVID-19”

PERM Business Necessity – Back with a Splash?

The Department of Labor (DOL) appears to be getting tough on employers who filed PERM applications before the start of the COVID-19 pandemic and the nationwide unemployment it has brought. Based on recent reports from employer petitioners for PERM labor certification (the process under which a U.S. employer must first conduct a test of the U.S. labor market as part of the green card process for a foreign national worker), the DOL has started asking for explanations of the business necessity regarding the position’s education, training, experience and skill requirements in its PERM audit letters.

Under longstanding PERM process regulations, an employer may only require education, training, experience, and skills that are “normal” to the job. To make this determination, DOL relies on the OES (Occupational Employment Statistics) (https://www.bls.gov/oes/) and O*NET Online (https://www.onetonline.org/) databases. If the requirements are not “normal,” the employer must be prepared to justify that they are necessary for the position and not easily learned on the job.

Recent DOL PERM audits are now requiring that an employer explain why the employer’s job opportunity requirements differ from the normally acceptable requirements of education, training, experience and skills as listed in the O*NET Job Summary. The employer must submit documentation establishing business necessity (as opposed to mere assertions of facts or preferences), and address how the requirements at issue apply to any U.S. applicants. Continue reading “PERM Business Necessity – Back with a Splash?”