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Immigrant worker program takes center stage in recent appellate decisions

January 12th, 2016  |  Ron Miller

In two recent Court of Appeals decisions, enforcement provisions of the H-1B foreign worker program took center stage. First, in Greater Missouri Medical Pro-Care Providers, Inc. v. Perez, the Eighth Circuit examined the breadth of the Secretary of Labor’s investigatory authority with respect to violations of the H-1B visa program. Was a single worker’s complaint sufficient to trigger a “full investigation” by the DOL? Following close on heels of that decision, was the Second Circuit’s ruling in Mantena v. Johnson. In that case, the appeals court was faced with the question whether the DOL was required to provide pre‐revocation notice either to a foreign worker or to a successor employer even though they were not the original petitioning parties of an I‐140 petition.

Investigation of H-1B visa violations. When faced with a complaint by a worker participating in the H-1B visa program, the standard procedure for the Department of Labor is to leverage that complaint into a comprehensive investigation into all aspects of an employer’s H-1B visa program. However, in Greater Missouri Medical Pro-Care, the Eighth Circuit rejected the Labor Secretary’s expansive view of his investigatory authority with respect to violations of the H-1B program. The appeals court concluded that a finding of reasonable cause to investigate just one allegation by an aggrieved party did not automatically justify a comprehensive investigation of the employer as a whole and authorize the DOL to inquire into other labor condition applications and the employer’s statutory and regulatory compliance with the H-1B program in general.

The INA generally provides four situations for initiating an investigation of potential violations: (1) investigations based on a complaint from an “aggrieved person or organization;” (2) “case-by-case . . . random investigations” of an employer within five years of a prior willful violation; (3) investigations where the Secretary “personally certifies” he “has reasonable cause to believe that the employer is not in compliance with subsection (n);” and (4) investigations based on “specific credible information” of a willful violation of certain requirements from a reliable source. That said, the court found no support for the Secretary’s contention that reasonable cause to investigate any single violation alleged by an aggrieved party “established a reasonable cause to investigate the employer” and every action the employer has taken with respect to the H-1B program and its H-1B employees. The court concluded that such an expansive reading of the Secretary’s investigatory authority was inconsistent with the plain language and structure of the Immigration and Nationality Act.

Immigration nightmare. The Second Circuit’s ruling in Mantena involved a foreign worker faced with the revocation of her H1-B visa, after the original petitioning employer, for whom she no longer worked, had filed the requisite I‐140 petition and was the only party to receive notice of both the intent to revoke the I‐140 petition and the ultimate revocation of that petition. Also in jeopardy was the worker’s filing of an I-485 application for adjustment of status to permanent residency.

The worker in Mantena, a computer program from India, was caught in an immigration nightmare. Nearly two years after she left the petitioning employer, the company’s president pleaded guilty to mail fraud in connection with an immigration petition filed on behalf of a different employee. As a consequence, the Customs and Immigration Service (USCIS) decided to initiate the revocation of all petitions filed by the company. However, USCIS’s Notice of Intent to Revoke (NOIR) the employee’s I-140 petition was sent only to the petitioning employer. Ultimately, the worker’s I‐140 petition was revoked. However, neither the worker, nor her current employer was informed of this action. By the time the worker learned of the revocation of her immigrant petition, her green card application had also been automatically denied.

Job flexibility of alien workers. Under the so‐called “portability” provisions of the American Competitiveness in the 21st Century Act (AC-21), foreign workers under the H1-B visa program are allowed to change jobs or employers while preserving the validity of not only the worker’s application for adjustment of status but also the underlying immigrant visa petition and alien labor certification filed by an earlier employer. Consequently, AC‐21’s job flexibility “portability” provisions made clear that the adjustment of status process was no longer tied to a single employer during the time that the alien worker waits for a permanent residency visa to become available.

What’s a worker to do? In this case, the worker filed multiple motions seeking to have the I‐485 denial reopened and reconsidered and the I‐140 revocation reversed. Ultimately, a district court dismissed her statutory and regulatory notice claims on jurisdictional grounds.

Notice to affected parties. Here, the Second Circuit observed that the worker’s case illustrated the importance of notifying affected parties of material changes in their proceedings and statuses and of giving them an opportunity to respond. The appeals court found that the district court’s denial of jurisdiction to be in error. It concluded that the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1252(a)(2)(B)(ii), did not strip the district court of jurisdiction over procedural challenges. Rather, it pointed out that the INA’s procedural requirements were codified in the statute or in regulations. Thus, the district court had jurisdiction to determine whether USCIS complied with those procedural requirements that were mandated before it could revoke the worker’s I-140 petition.

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