FLYNN & CLARK, P.C.
STEVEN A. CLARK

The Department of Labor (DOL) is proposing to eliminate the current practice of allowing the substitution of beneficiaries on permanent labor certification applications and resulting certifications.  While the intent of the rule to eliminate a black market in unused Labor certification's is well-intended, the rule would mean employer would have to start from scratch when employee's leave and employee's would likewise have to start allover again after waiting for years if their job changes or the employer relocates.  Also, the DOL proposes an unrealistic 45-day limit for employers to file approved permanent labor certifications in support of an immigrant visa petition with U.S. Citizenship and Immigration Services.

The provisions would apply to permanent labor certification applications and approved certifications filed under both the PERM regulation effective March 28, 2005, and any prior regulation implementing the permanent labor certification program. The proposed rule also proposes clarifying modifications of applications filed after March 28, 2005, under the new streamlined permanent labor certification process.

ABIL notes that the proposed rule seems to prohibit the transfer of a labor certification as an asset in a corporate sale, merger, or reorganization.  Further, employers are expending honest resources to make good-faith applications for a benefit that belongs to the company once a labor certification has been issued.  As such, they should be able to assign that benefit to another qualified employee if the original beneficiary becomes unavailable.  Also, the 45-day time limit seems far too short and hardly allows for normal postal delays. 

The DOL is soliciting comments on the proposed provisions. Interested persons are invited to submit written comments on the proposed rule by April 14, 2006.  See the proposed rule for details on the provisions and how to submit comments at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-1248.pdf.

The New York State Court of Appeals ruled on February 21, 2006, that undocumented workers may recover lost wages.  The court ruled in two consolidated cases where undocumented construction workers were injured at their place of work and sued for lost wages.  The court held that the facts in these cases distinguished them from the Supreme Court's decision in Hoffman Plastic Compounds Inc. v. National Labor Relations Bd., 535 U.S. 137 (2002), which held that a worker who provided fraudulent work authorization documents could not be awarded back pay for work not performed as a result of an employer's unfair labor practice.  In the current cases, the New York appeals court noted, the workers did not commit a crime by using false documents to obtain their jobs. 

The employers argued that an award of lost wages would undermine federal immigration law.  The court disagreed, noting among other things that if an employer realizes there is no advantage to hiring undocumented workers, it will be more likely to comply with the law.  Additionally, the court said, limiting a lost wages claim by an injured undocumented worker would lessen an employer's incentive to comply with labor law by supplying a safe workplace for all its workers.

The U.S. Government Accountability Office (GAO) said in a recent report that Social Security Administration (SSA) has several types of data that could be useful to reducing unauthorized work: individual Social Security records and earnings reports.  Individual Social Security records are used by the SSA to provide verification services to employers.  The SSA also uses Social Security records in the "Basic Pilot" work authorization verification system, which offers electronic verification of worker status to about 5,000 employers around the country.  The Basic Pilot program is voluntary at the moment, although several immigration reform bills pending in Congress would make the program mandatory.

The SSA's earnings records provide additional information, which the GAO said could be used as an enforcement tool to identify unauthorized work. SSA uses such records to produce two relevant files based on earnings records: the Nonwork Alien File and the Earnings Suspense File (ESF).  The Nonwork Alien File contains earnings information posted to SSNs issued for nonwork purposes, suggesting that these individuals may be working without authorization.  The ESF contains earnings reports for which SSA is unable to match the name and SSN of the worker, suggesting employer error, SSN misuse, or unauthorized work activity.  In addition, the ESF, which contained roughly 250 million records as of December 2004, appeared to include an increasing number of records associated with probable unauthorized work.  Because of statutory constraints, however, the ESF was not available to the Department of Homeland Security (DHS) as an enforcement tool.

Improving the usefulness of SSA data could help identify unauthorized work and ensure that limited enforcement resources are targeted effectively, the GAO said.  The GAO recommends that the Internal Revenue Service work with the DHS and SSA as it considers strengthening its employer wage reporting regulations and thus improving the accuracy of reported wage data, and that the DHS, with the SSA, determine how best to use such wage data to identify potential illegal work activity.

The GAO report, Social Security Numbers: Coordinated Approach to SSN Data Could Help Reduce Unauthorized Work (GAO-06-458T), is based on previous GAO studies and is available at http://www.gao.gov/new.items/d06458t.pdf.

On March 9, Vince was also invited to serve as one of the workshop speakers at the American Immigration Lawyers Association’s Fundamentals of Immigration Law Conference in Chicago.  He provided new practitioners with a forum to learn in further detail different immigrant and nonimmigrant visa issues.

Vince is also scheduled to appear as an invited guest panelist at AILA’s national Annual Conference in San Antonio, Texas in June."

• Steven A. Clark, of Flynn & Clark, P.C., "stands out as an excellent business immigration lawyer across the board."