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Employers’ Immigration Update - No. 12 December 2013

H-2B Employers Using Temporary Foreign Workers Not Required to Pay Supplemental Prevailing Wages

In a significant decision likely to have a major impact on H-2B employers, the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) has rejected the DOL’s attempt to apply supplemental prevailing wage determinations (PWDs) retroactively on employers who use H-2B temporary foreign labor. The action came in an Appeals Board Decision rendered on December 3.

Ninth Circuit Requires Reimbursement of H-2A Expenses

In the latest in a series of decisions addressing the proper allocation of travel and immigration fee expenses between employers and employees utilizing the H-2A agricultural guest worker program, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled that an employer must reimburse an H-2A worker for the employee’s travel and immigration expenses in the initial week of employment.

Health History Can Block Entry to U.S.

A disturbing trend appears to have developed in the last few years in admissions review at the Canadian border. U.S. border guards reportedly are barring entry to anyone they deem a threat to themselves, others or their property based on the person’s personal health history. The Information and Privacy Commissioner of Ontario will “look into the matter to ensure that personal health information isn’t compromised.” One 2011 report states, “More than a dozen Canadians have told the Psychiatric Patient Advocate Office in Toronto within the past year that they were blocked from entering the United States after their records of mental illness were shared with the U.S. Department of Homeland Security.”

New E-Verify MOU to be Released

New Memorandums of Understanding (MOUs) for E-Verify will be released on December 8, 2013, according to USCIS. Current E-Verify users will not be required to execute a new MOU, but they are bound by any and all enhancements to the E-Verify program, including the new or revised MOU that applies to their access method; therefore, they should become familiar with the new or revised MOU that applies to their access method. Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment.

Restaurant Manager Indicted on Harboring Charges

The manager of a restaurant who failed to complete I-9s and provide housing for his workers has been indicted on harboring charges. The manager faces a maximum penalty of 10 years in federal prison and a fine of up to $250,000 for each count in the indictment. These charges illustrate that ICE techniques for worksite enforcement are not limited to I-9 inspections and fines.

Jackson Lewis P.C. © 2020National Law Review, Volume III, Number 343


About this Author

Sean G. Hanagan, Jackson Lewis, business immigration lawyer, employment eligibility verification attorney

Sean G. Hanagan is a Principal in the White Plains, New York, office of Jackson Lewis P.C.

Working with human resources professionals and in-house counsel, he helps employers develop business solutions and policies for the hire and movement of international staff. Mr. Hanagan advises on I-9 employment eligibility verification, E-Verify and social security issues, and on best practices to avoid hiring-related discrimination. He defends companies subject to government audits and investigations, and guides employers through...

William J. Manning, Jackson Lewis, Employment Immigration Lawyer, Visa Strategies Attorney

William J. Manning is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He has been advising both U.S. and foreign employers with regard to immigration matters since 1986. Mr. Manning established the Jackson Lewis Immigration practice in 1998.

Mr. Manning’s practice covers all aspects of employment-based immigration into the United States. He works closely with employers to structure their immigration programs and develop long-term visa strategies for key employees. He has extensive experience in obtaining non-immigrant work visas and employment-based immigrant visas for management, professional and specialized skill employees. He frequently participates in seminars and training programs addressing immigration issues.

Minnie Fu, Jackson Lewis, Immigration Litigation Lawyer, Employment VISA Applications attorney

Minnie Fu is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on assisting employers in obtaining employment-related visas and advising employers on compliance with U.S. immigration laws and regulations.

Ms. Fu has twenty years of experience in employment-based immigration matters, including nonimmigrant and immigrant visa matters, developing corporate immigration policies and procedures for best practices, and strategic corporate planning for international personnel employment by...

Jackson Lewis Law Firm, Immigration Attorney, Harry J. Joe

Harry Joe is a Shareholder in the Dallas, Texas office of Jackson Lewis P.C. and is head of the Immigration Group in Texas.