When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

The Immigration Law Group at Epstein Becker Green released a Special Immigration Alert that will be of interest to our readers.

Topics include:

  1. President Trump Issues Revised Executive Order on Travel
  2. USCIS Suspends Premium Processing for H-1B Petitions Starting April 3, 2017: All H-1B Petitions, Including H-1B Cap Petitions, Are Affected!
  3. Use of New Form I-9 Is Now Mandatory
  4. IRS Announces That Delinquent Taxpayers Face Revocation/Denial of U.S. Passports
  5. DHS Issues Two New Memos on Enforcement/Border Security

Read the full alert here.

Immigartion Banner

Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to hospitality employers.

On February 24, 2015, the Department of Homeland Security (DHS) issued a final rule that extends eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident status. H-4 spouses who fit the eligibility criteria will be able to apply for employment authorization starting on May 26, 2015.

Read the full Client Alert here.

Robert S. Groban, Jr. and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

By Matthew S. Groban and Robert S. Groban, Jr.

The OCAHO has recently issued two Form I-9 enforcement decisions involving hospitality and construction industry employers that should be of interest to all our clients.

In United States v. Symmetric Solutions, Inc. d/b/a Minerva Indian Cuisine, 10 OCAHO no. 1209 (OCAHO February 6, 2014), an OCAHO Administrative Law Judge ("ALJ") upheld a $77,000 fine imposed by Immigration Customs Enforcement ("ICE") against a restaurant in Alpharetta, Georgia ("Restaurant"), for Form I-9 violations. ICE claimed that the Restaurant failed to prepare/present Forms I-9 for more than 80 employees, failed to ensure that several employees completed their Forms I-9 correctly, and hired 17 workers knowing that they were not authorized to work. The Restaurant claimed that it was not liable for the violations because, among other things, it did not own the Restaurant at the time of the violations. The ALJ rejected this defense, and upheld the fine, because the evidence established that the original owners retained a 40 percent interest in the business following the sale and continued to play an active role managing the business after the transaction.

In United States v. M&D Masonry, Inc., 10 OCAHO no. 1211 (OCAHO March 11, 2014), the ALJ upheld a fine of $228,300 imposed by ICE upon M&D Masonry ("M&D"), a Georgia masonry company, for Form I-9 violations. The government was alerted to possible misconduct by M&D from a newspaper article entitled "Illegal hiring for airport construction," which appeared in The Atlanta Journal-Constitution. After an investigation, ICE charged M&D with failing to secure correctly completed Forms I-9 from more than 270 employees and with failing to obtain any Form I-9 from more than 85 employees. The OCAHO ALJ rejected M&D’s claims that, among other things, these were at most technical violations and failed to take the company’s limited financial resources into account. In this regard, the ALJ upheld the fine of $228,300 after pointedly noting that ICE was "unduly generous" in considering the company’s financial situation when establishing the fine, due to the serious and persistent number of violations at issue.

These cases serve as an important reminder to employers of the potentially serious nature of Form I-9 violations and the continuing need to address them as part of any organization’s overall risk management policies. These cases also underscore the importance of "due diligence" in this area as part of any merger, acquisition, or other transaction. Most purchase and sale agreements do not have specific set asides for these penalties or provisions to handle the business disruption that can result from ICE directives to terminate undocumented workers. Thus, it is critical to assess these issues prior to closing to avoid the litigation that invariably follows if they are not suitably addressed.

Robert Groban and the Immigration Law Group of Epstein Becker Green recently issued an alert that will be of interest to employers. Following are the main topic headings:

Read the full alert here.

By:  Robert S. Groban, Jr. and Matthew S. Groban

The recent decision by the Chief Administrative Hearing Officer (“OCAHO”) in United States v. The Red Coach Rest., Inc., 10 OCAHO No. 1200 (2013) provides a roadmap for employers seeking to reduce fines sought by Immigration and Customs Enforcement (“ICE”) for Form I-9 violations.  In Red Coach, the ICE complaint alleged that Red Coach: (1) failed to prepare Form I-9’s for nine employees within 3 days of their hire, and/or failed to present the forms to ICE upon request; and (2) failed to ensure proper completion of Form I-9’s for forty-one additional employees.  The complaint requested penalties in the amount of $30,184. 

The Administrative Law Judge (“ALJ”) reduced this penalty to $16,300 because the amount sought by ICE was too severe in proportion to Red Coach’s ability to pay, did not consider account of Red Coach’s history of no previous Form I-9 violations, and had no deterrent effect because Red Coach’s Form I-9’s now are handled by another company.  In his decision, the ALJ noted that in determining the appropriate amount of civil penalties for Red Coach’s paperwork violations, he gave “due consideration … to the size of the employer, the good faith of the employer, the seriousness of the violation, whether or not the individual was an unauthorized alien, and the history of previous violations.” 

The Red Coach decision reminds hospitality employers of the potentially severe fines that can arise out of any failure to properly complete the Form I-9 paperwork, and of the need to train staff on the Form I-9 process.  It also provides avenues for reducing ICE fine determinations through appeals to OACHO based on the particular facts of the case. 

By: Robert S. Groban, Jr. and Matthew S. Groban

On June 28, 2013, a District of Columbia restaurant sued its former executive chef to recover the expenses incurred to secure his H-1B visa.  See Rasika West End LLC v. Tyagi, No. 13-0004426 (D.C. Super. Ct. filedJune 28, 2013). According to the complaint, the employer entered into a thirty-six (36) month contract with the H-1B employee, and claimed that it would take that long to recover, among other things, funds spent to secure the approved H-1B petition the employee needed to assume the position. The complaint further alleges that the restaurant was entitled to recover these expenses because the contract required the employee to pay them if he voluntarily left the employment before thirty-six (36) months elapsed. 

The U.S. Department of Labor regulations do not permit an H-1B employer to require a prospective employee to pay these H-1B expenses at the outset. These regulations appear to permit sponsoring employers to recoup these expenses as “liquidated” damages if the sponsored employee fails to live up to his or her employment commitment. The area is a complex one, however, so employers contemplating this type of recoupment need to consult experienced immigration counsel to be sure that the provisions they prepare are enforceable and do not adversely affect either the employment or H-1B relationship.

We recommend this recent client alert on Epstein Becker Green’s website: "Special Immigration Alert: The Immigration Ripple Effect of a Government Shutdown," by Robert Groban, Jr., Pierre Georges Bonnefil, Patrick Brady, Jang Im, and Greta Ravitsky, our colleagues at Epstein Becker Green.

Following is an excerpt:

The looming prospect of a Government shutdown will have a significant impact on the immigration process. Activities of the U.S. Citizenship and Immigration Services (USCIS) will be largely unaffected because it is funded by the fees it collects. The shutdown, however, may affect the ability of applicants to secure the government information required to respond to Requests for Evidence.

Read the full client alert here.

Remember that all new H-1B petitions must be filed on March 30, 2012, to ensure that they are counted toward the 2013 H-1B cap.

The annual H-1B season has arrived! The federal government is authorized by statute to approve only 65,000 new H-1B visas each fiscal year, plus an additional 20,000 H-1B visas set aside for applicants who have master’s degrees from accredited American universities. The federal government’s fiscal year begins on October 1, but the governing regulations permit employers to apply for new H-1B non-immigrant visas up to six months in advance. Hence, the filing date is March 30, 2012.

For the past three years, the H-1B cap has not been met on the first day. Prior to that, the government received substantially more H-1B petitions than the quota allowed and conducted a "lottery" to determine the cases selected. The format for this lottery has varied and has not been announced for this year. Generally, the U.S. Citizenship and Immigration Service ("USCIS") logs new H-1B petitions according to the date on which they arrive. When the projected volume exceeds the quota, USCIS conducts a random lottery for all H-1B petitions properly filed on the date the quota was reached.

To avoid H-1B cap problems, employers are encouraged to review their current employee rosters and potential new hires to identify possible H-1B candidates. Potential H-1B cap cases include F-1 students working on grants of Optional Practical Training ("OPT"), L-1B transferees in the green card process or who need the additional year here that the H-1B classification provides, or potential hires from cap-exempt organizations who will need new H-1B visas to work for "cap-subject" employers.

We cannot "guestimate" what the volume of H-1B petitions will be this year. We can say that the only way to ensure that your petitions are counted toward the 2013 H-1B cap is to file them on March 30, 2012, so they arrive at USCIS on April 2, 2012, and are included in a possible random lottery.

For more information, or if you have questions regarding how this might affect you, your employees, or your organization, please contact one of the following members of the Immigration Law Group at Epstein Becker Green: 

New York
Robert S. Groban, Jr.
212/351-4689
 rgroban@ebglaw.com

New York
Pierre Georges Bonnefil
212/351-4687
pgbonnefil@ebglaw.com 

Newark
Patrick G. Brady
973/639-8261
pbrady@ebglaw.com

San Francisco
Jang Im
415/398-3500
jim@ebglaw.com 

Houston
Greta Ravitsky
713/300-3215
gravitsky@ebglaw.com