The packet contains basic information on DLIR’s role in certifying H2A Visa requests and housing, disability compensation laws, unemployment insurance law, and Hawaii’s wage and hour laws, including child labor. Download the packet here or check out DLIR’s website.

A company is required to bargain with a union, even though the majority of the workers who elected it were undocumented workers, rules a split panel of the D.C. Court of Appeals. The company had argued that undocumented aliens are prohibited from unionizing because they do not qualify as “employees” under the National Labor Relations Act.

Although the Immigration Reform and Control Act makes it illegal to employ undocumented workers, the Court says that it was possible that Congress “still intended that the NLRA apply to such aliens.” The Court observes that “there is absolutely no evidence that in passing IRCA Congress intended to repeal the NLRA to the extent its definition of ‘employee’ includes undocumented aliens.”

Circuit Judge Brett Kavanaugh dissented from the opinion, saying that he would hold that an illegal immigrant worker is not an employee under the NLRA “for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.” Agri Processor Co. Inc. v. NLRB

U.S. Citizenship and Immigration Services has an online explanation of the annual caps set by Congress on certain nonimmigrant visa classifications used by employers to bring in foreign workers in specialty or other occupations (H-1B and H-2B visas). The explanation also provides an update on its rule prohibiting duplicate filings of H-1B petitions by employers; as of June 6, 2008, USCIS found that less than ½ of one percent of the total H-1B eligible petitions received involved duplicate filings for the same prospective beneficiary.

In addition to clarifying the immigration and visa status of Micronesia and Marshall Island citizens, the fact sheet issued by the U.S. Citizenship and Immigration Services covers employment authorization documentation, labor recruitment arrangements, and social security card. Hawaii employers who need more information on immigrant workers, I-9 Form requirements (particularly the updated I-9) can sign up for HEC’s March 6 Immigration Law Update featuring immigration attorney Kahbo Dye-Chiew.

The U.S. Dept. of Labor plans to modernize the H-2A program for employing foreign workers in temporary or seasonal agricultural jobs. The proposed changes will provide farmers with an orderly and timely flow of legal immigrant workers while protecting the rights of both U.S. and H-2A workers, according to Labor Secretary Elaine Chao. The DOL reports that currently, only about 75,000 workers participate in the H 2A program, while there are an estimated 600,000 to 800,000 illegal immigrant farm workers in the U.S.

The proposed rule would reduce duplication of government effort by requiring employers to file H 2A applications directly with the Employment and Training Administration rather than file with state agencies; the length of time employers would be required to recruit for domestic workers would be increased before being permitted to apply for H 2A workers.

While the changes are receiving the support of employers, the United Farm Workers union has criticized the proposed new rules as “gutting” existing protections for workers, resulting in lower wages and a worsening of conditions that currently exist. The proposed rule changes must be published in the Federal Register for comment before becoming final.

The Dept. of Homeland Security has released an interim final rule extending the Optional Practical Training period by an additional 17 months to qualified foreign students who are employed by businesses enrolled in the U.S. Citizenship and Immigration Services E-Verify program. The E-Verify program is an internet-based system operated in partnership with the Social Security Administration, and is aimed at determining the employment eligibility of newly-hired employees. The extension will be available to F-1 students with a degree in science, technology, engineering, or mathematics who are employed by businesses in the E-Verify program.

Employers who file multiple H-1B visa petitions for the same foreign worker hoping to improve the chance that their petition will be selected will no longer be able to do so under an interim rule promulgated by the Dept. of Homeland Security.

The H-1B visa program allows U.S. businesses to employ foreign workers in occupations requiring highly specialized knowledge such as scientists, engineers, or computer programmers. By law, there is a congressionally mandated cap of 65,000 per new H-1B visas per fiscal year. According to U.S. Citizenship and Immigrations Services, on the first day that H-1B petitions could be received for fiscal year 2008, the agency had enough petitions to meet the cap. To promote fairness for prospective petitioners, the agency says it will now either deny or revoke multiple petitions filed by an employer for the same H-1B worker, and it will not refund filing fees for duplicative petitions. According to USCIS, the rule will not prevent related employers (such as a parent company and subsidiary) from filing petitions on behalf of the same foreign worker for different positions, based on legitimate business need.

If the company has hired foreign workers who don’t have a Social Security number, it may be noticing some delays in the worker getting the actual card, the Social Security Administration says. The SSA has put together a web page outlining what the employer can do to fulfill its obligation in completing the form W-2 filing, including what to do if the employee has applied for a Social Security number and card but didn’t yet receive it. The web page also contains a link on what to do if the company receives a “no match” letter from SSA.

The U.S. Dept. of Labor issued its final rule on permanent labor certifications aimed at cutting back on fraud and abuse. The rule prohibits the substitution of alien beneficiaries on permanent labor certifications and applications, and the sale, barter, or purchase of the certifications and applications. The rule also requires employers to pay the costs of preparing, filing and obtaining certification, and strictly prohibits employers from passing the costs incurred on to the alien beneficiary.