DECEMBER 2023
Khaas Baat : A Publication for Indian Americans in Florida

Immigration

LABOR CERTIFICATION, EB5 PROGRAM

By Dilip Patel

Dilip Patel

DILIP PATEL

This month we provide updates on two items, the first relates to Labor Certification and the second about SEC actions on EB5 program.

Apple pays $25 Million to Settle Claims related to Labor Certification Process
The U.S. Department of Justice announced on Nov. 9, 2023, that it reached a $25 million settlement agreement with Apple Inc. to resolve allegations that Apple illegally discriminated in hiring and recruitment against U.S. citizens and certain non-U.S. citizens whose permission to live in and work in the United States does not expire. Under the agreement, Apple is required to pay up to $25 million in backpay and civil penalties, the largest award that the department has recovered under the anti-discrimination provision of the Immigration and Nationality Act (INA).

Background
As readers may be aware, one of the most frequently used pathways to processing a Green Card is through sponsorship by an employer for a job for which the employer has obtained a “Labor Certification” from the Department of Labor (DOL). Labor Certification is confirmation from the DOL to the USCIS that there are not sufficient U.S. workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers. The Labor Certification program is usually referred to PERM and leads to Green Cards in the EB3 and EB3 preferences.
A PERM labor certification requires testing the job market and includes a recruiting period of at least 60 days, but no more than 180 days, prior to the actual filing of the application. The purpose is to test the market to determine if qualified U.S. workers are able, willing and available to fill the job at the time of filing the application. This is a highly regulated process and contains provisions to prevent discrimination against U.S. job seekers. U.S. citizens, U.S. nationals, asylees, refugees and recent lawful permanent residents are protected from citizenship status discrimination. An employer cannot limit its hiring only to U.S. citizens unless there is a law, regulation, executive order, or government contract requires the employer to do so.

The Apple Settlement
Here, DOL alleged that Apple violated anti-discrimination requirements of the Immigration and Nationality Act during Apple’s recruitment for positions falling under the permanent labor certification program.

The department’s investigation, started in February 2019, and alleged that Apple engaged in a pattern or practice of citizenship status discrimination in recruitment for positions it hired through PERM, and that the company’s unlawful discrimination prejudiced U.S. citizens, U.S. nationals, lawful permanent residents, and those granted asylum or refugee status. These less effective recruitment practices deterred protected workers from applying to positions that Apple preferred to fill instead with PERM beneficiaries.

Specifically, the DOJ alleged that the department’s investigation found that Apple did not advertise positions Apple sought to fill through the PERM program on its external job website, even though its standard practice was to post other job positions on this website. It also required all PERM position applicants to mail paper applications, even though the company permitted electronic applications for other positions. In some instances, Apple did not consider certain applications for PERM positions from Apple employees if those applications were submitted electronically, as opposed to paper applications submitted through the mail. These less effective recruitment procedures nearly always resulted in few or no applications to PERM positions from applicants whose permission to work does not expire. 

Pursuant to the $25 million agreement, Apple is required to pay $6.75 million in civil penalties and establish an $18.25 million back pay fund for eligible discrimination victims. The agreement also requires Apple to ensure that its recruitment for PERM positions more closely matches its standard recruitment practices.

Lessons for Employer Sponsors
Employers should seek and follow the advice of experienced immigration attorneys when seeking Labor Certification. Specifically, they need to ensure that all the recruitment steps are undertaken in good faith and follow their normal recruitment procedures in addition to those mandated by the DOL PERM regulations and guidance. The temptation to reduce applicants by failing to follow normal steps or introducing extra steps for PERM related recruitment should be avoided.

EB5 Industry News
Just days before the Thanksgiving holiday, the SEC announced that it had charged Nadim Ahmed, a New York-based businessman and his companies, NuRide Transportation Group, LLC and NYC Green Transportation Group, LLC, with making fraudulent misrepresentations in securities offerings to investors seeking permanent residency through the EB-5 Immigrant Investor Program. More surprising was that the SEC also charged Ahmed along with Mehreen Shah a/k/a Mona Shah, a New York-based immigration attorney, and her law firm with offering unregistered securities to investors in offerings that raised more than $66 million from more than 100 investors. Mona Shah and her immigration law firm are prominent in the EB5 industry. Her law firm issued a statement on the following day that the firm is troubled by the allegations by the SEC that she, her firm and the Gravitas NYC Regional Center purportedly ran afoul of Section 5 of the Securities Act. “It is disappointing that the SEC has made these allegations based on a technicality, and we are confident we will show we acted appropriately,” said Mona Shah, Esq.  

The SEC has issued an Investor Alert to warn individual investors about fraudulent investment scams that exploit the EB5 program. It is available at: https://www.investor.gov/introduction-investing/general-resources/news-alerts/alerts-bulletins/investor-alerts/investor-51.



Dilip Patel of Buchanan Ingersoll & Rooney PC, a board-certified expert on immigration law, can be reached at (813) 222-1120 or email dilip.patel@bipc.com

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