Immigration Law

Innovative thinking and practical solutions

DHS Funded for One More Week; Shutdown Temporarily Averted

Posted in Government Shutdown, Immigration Reform, USCIS

Republican leaders and both branches of Congress failed Friday to come to a long-term agreement to provide fiscal year funding for the Department of Homeland Security (“DHS”) and provide confidence that a DHS shutdown will be avoided. A one-week funding extension was passed, and now DHS is poised to run out of money at midnight on March 6th. Both Republicans and Democrats in the House expressed displeasure with the bill. Republicans want the funding legislation to address President Obama’s recent immigration related executive action and Democrats want a bill that will fully fund DHS through the end of the fiscal year (September 30, 2015). US Citizenship and Immigration Services (“USCIS”) is one of the many agencies under the umbrella of the DHS.

USCIS grants affirmative immigration benefits based on user fees. As discussed in our alert, as a fee-funded agency, USCIS will be minimally impacted by any “shut down”. However, in previous government shut downs, such as the one in late 2013, we observed a general slowdown in petition and application processing times.

Unlike in the full government shut down of 2013, non-DHS agencies that process other types of immigration related applications and identity documents, such as the Department of Labor, Department of State, and the Social Security Administration, will continue operating under fully funded budgets. We therefore do not expect any impact on the processing times for H-1B Labor Condition Applications, PERM Labor Certifications or visa applications at U.S. Embassies or Consulates abroad regardless of what happens with DHS funding bills.

Today’s failure to pass a long-term bill in the House only serves to heighten funding uncertainty for DHS. If sticking points in the House involve Obama’s immigration related executive action, surely it is time for Congress to revisit legislative immigration reform.

Beyond U.S. Citizens and Lawful Permanent Residents: Are Other Classes of Individuals Legally Authorized to Work Protected from Employment Discrimination?

Posted in DACA, Employment Law

With Michael Arnold

In a novel case, a New York federal court judge recently denied an employer’s motion to dismiss a Section 1981 alienage discrimination class action lawsuit.  The lawsuit alleges that Northwestern Mutual Life Insurance Company violated that Act by implementing a policy of hiring only U.S. citizens and lawful permanent residents.

Background

In Juarez v. Northwestern Mut. Life Ins. Co., the plaintiff, Ruben Juarez, a Mexican national living in New York City was a Deferred Action for Childhood Arrivals (“DACA”) employment authorized individual.  Through DACA, President Obama in 2012 authorized the Department of Homeland Security to exercise discretion in granting deferred action to qualified immigrant youth and authorize them to remain in the U.S., obtain an employment authorization document (EAD), and obtain a Social Security number.  The EAD authorizes the holder to work for any employer, has a two-year validity period, and is renewable.  In other words, it makes an individual legally authorized to work in the U.S. for a specified period of time, and it can be extended without sponsorship from the employer.  Juarez applied for an internship at Northwestern Mutual, but an HR representative told him that regardless of his DACA status, he could not work for the company because “you have to be a US citizen or have a green card.”

The Decision

A class action lawsuit followed claiming that Northwestern Mutual’s hiring policy is discriminatory on its face and violates 42 U.S.C. §1981 – a federal civil rights statute.  Section 1981 makes it illegal for employers to discriminate on the basis of race or alienage in making and enforcing contracts, including employment contracts.

Northwestern Mutual tried to have the claim thrown out, but Judge Forrest of the Southern District of New York denied its request because Section 1981’s protection against job discrimination “extends to all lawfully present aliens,” not just green-card holders.  Therefore, Juarez’s allegation that Northwestern Mutual’s policy excluded a lawfully present individual (i.e. those with a DACA immigration status) from potential employment was sufficient to state a Section 1981 claim.

Judge Forrest was also not persuaded by the fact that Northwestern Mutual’s policy clearly invited other non-U.S. citizens authorized to work in the U.S. (i.e. legal permanent residents, also referred to as Green Card holders ) to apply for employment.  She cited a Second Circuit in Brown v. Henderson, which held that a plaintiff need not plead discrimination against all members of a protected class in order to state a viable claim under Title VII.  The analysis was no different under Section 1981: “A defendant is not insulated from § 1981 liability for intentional discrimination against some members of a protected class merely because not every member of the class becomes a victim of discrimination.”

What This Means for You

As this case demonstrates, employers should be mindful of hiring policies that could negatively affect those individuals who are legally eligible to work in the U.S., but who are not U.S. citizens or lawful permanent residents. Employers should train Human Resources personnel to recognize the variety of status or work authorizations by which individuals who are not U.S. citizens are legally authorized to work here.  This requirement will take on even more importance in light of President Obama’s Executive Order on Immigration, signed on November 20, 2014, which may potentially authorize additional classes of individuals who will be eligible to work in the U.S.

In general, an employer may make hiring decisions by distinguishing only between lawfully present and unlawfully present individuals (or immigrants).  But even when confronted with certain job applicants with time-limited work authorizations, we do not believe that this decision prohibits employers from asking applicants whether they will require sponsorship from the employer to work for that specific employer and thereafter refusing to hire them on that basis.  Under the anti-discrimination provision of the Immigration and Naturalization Act, nonimmigrant visa holders may not claim a violation of that law for failure to hire based on their need for sponsorship from the hiring employer to be legally allowed to work for that employer.

We do not think they could claim a §1981 violation either.  People without legal authorization to work for the hiring employer would lack standing as a protected class against that employer since the reason for the failure to hire would not be a candidate’s alienage, but rather the fact that the candidate does not possess legal authorization to work for the hiring employer.

The outcome of the Juarez case remains to be seen, but the ultimate decision will have implications for DACA recipients and potentially for future beneficiaries of the President’s November 20, 2014 Executive Order on Immigration.

Skilled Immigration Reform: Will 2015 Be the Year?

Posted in Immigration Reform

On January 13, 2015 Senators Orrin Hatch (R-UT), Amy Klobuchar (D-MN), Marco Rubio (R-FL), Chris Coons (D-DE), Jeff Flake (R-AZ), and Richard Blumenthal (D-CT) introduced the Immigration Innovation Act of 2013 into the Senate.  This bill, known as S. 169 or “I2”, clearly has bipartisan support, and aims to broadly reform high skilled immigration.  The bill was originally introduced by Senator Hatch in January, 2013 but it was quickly overshadowed by the Senate’s comprehensive immigration reform bill, and neither bill made any headway in Congress.  Perhaps this year the result will be different.

The bill contemplates reforms that are long overdue, including the following:

  • A market-based adjustment to the H-1B visa cap with a new floor of 115,000;
  • Elimination of the existing 20,000 cap on the U.S. advanced degree exemption for H-1B visas;
  • Authorization of employment authorization for spouses of H-1B visa holders (not limited to spouses of H-1B visa holders being sponsored by their employers for green cards);
  • Elimination of the requirement in the immigration law that foreign students prove they intend to return to their home countries following graduation;
  • Recapture of green card numbers previously approved by Congress, but unused;
  • Exemption from the employment-based green card cap of dependents of employment-based immigrant visa recipients, US STEM advanced degree holders, persons with extraordinary ability and outstanding professors and researchers;
  • Elimination of outdated per-country limits for employment-based visa petitions and adjustment of per-country caps for family-based immigrant visas; and
  • Establishment of a grant program using funds from new fees added to H-1B visa petitions and employment-based green card petitions, to further needed STEM education and worker retraining.

For years business groups across the country have been clamoring for the types of reforms reflected in this bill.  The big question is whether the current Congress is capable of enacting stand-alone immigration legislation that focuses only on skilled immigration.  If the House introduces similar legislation in the foreseeable future it will be a good sign that a joint bill may be in the offing.

Immigration Seminar for Start-Ups & Entrepreneurs

Posted in Events

On Thursday, December 18th at 4:30pm, Bill Coffman, Of Counsel in our Boston office, will lead a seminar at the Cambridge Innovation Center. Bill’s presentation will cover US work visa options for start-ups and entrepreneurs. He will also discuss how foreign national entrepreneurs can navigate the pitfalls of the current system.

Location:
Venture Café
Cambridge Innovation Center
One Broadway, 5th Floor
Cambridge, MA 02142

Please Note:
After arriving at One Broadway, please provide your name to the security desk on the ground floor. Then proceed to the 5th floor Venture Café kiosk to sign in and obtain your name tag. Registration begins at 4:30pm, the seminar will begin at 5:00pm.

To register, click here.

Senate Passes Spending Bill: DHS Only Funded Through February 2015

Posted in Immigration Reform

In an unusual weekend session, the US Senate passed the “Cromnibus” government funding bill, providing funding for most government agencies through September 2015. However, the Department of Homeland Security, which includes US Citizenship and Immigration Services and US Immigration and Customs Enforcement, was only funded through February 27, 2015.

The contentious 56-40 vote saw senators from both parties voting against the spending bill. “Liberal Democrats, led by Senator Elizabeth Warren, objected to a weakening of the Dodd-Frank financial reform law, while conservative Republicans, led by … [Senator] Ted Cruz, tried to sink it for failing to stop Obama’s [immigration] order.”

By the end of February, both houses of Congress will be controlled by the Republican Party, which may use its funding authority to try to block implementation of President Obama’s executive order on immigration. Specifically, Republicans are leaving the option open to “try to deny the agency any funds for … easing deportations for millions of undocumented immigrants.”

Employment-based Visa Petitions: Why Dun and Bradstreet Can Make or Break a Petition

Posted in USCIS

It’s a little known fact that U.S. Citizenship and Immigration Services (USCIS) won’t approve an employment-based visa petition before checking the company information against the Dun and Bradstreet (D&B) database via the Validation Instrument for Business Enterprises (VIBE) system.  If any company information on the petition is not an exact match with D&B, USCIS will issue a Request for Evidence (RFE) regarding the discrepancy, which will delay the approval.  Many employers are not aware of this reliance by USCIS on D&B or don’t realize the level of detail checked by USCIS.  Even if a company changes office suite numbers or floors in the same building, the petition will likely receive an RFE.  Companies seeking approval of an L-1 intracompany transferee visa should make sure the D&B database properly lists all related companies overseas.

Accordingly, before filing a visa petition on behalf of an employee, employers should update D&B with their most up-to-date company information and ensure that there is a perfect match between the information in the petition and the D&B database.  This will take them one step closer to have their visa petitions approved in a timely fashion.

President Obama’s Executive Immigration Reform: Shining a Spotlight on Reforming Optional Practical Training “OPT”

Posted in F-1 Visas, Immigration Policy, Immigration Reform

As a part of President Obama’s recent announcement regarding his executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued several memoranda to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE).  On November 24th, we posted a comprehensive overview of changes the business community can expect as a result of the executive action. In this post, we focus on one aspect of Secretary Johnson’s memo on “Policies Supporting U.S. High Skilled Businesses and Workers”, namely Optional Practical Training (OPT) for foreign students and graduates of US colleges and universities.

OPT provides a mechanism for foreign students to get experience in their field of study, both during school and after their graduation.  Most foreign students are entitled to post-graduation OPT for only a 12 month period.  However, students who major in Science, Technology, Engineering or Math (STEM) fields and work for employers who are enrolled in E-Verify, can extend their post-graduation OPT for an additional 17 months, resulting in a total post-graduation OPT  period of 29 months.  The STEM OPT extension was designed to solve a fundamental problem resulting from the insufficiency of H-1B visas. Continue Reading

Immigration Developments for Highly Skilled Workers: Changes the Business Community Can Expect as a Result of President Obama’s Executive Action on Immigration Reform

Posted in Immigration Policy, Immigration Reform

On Thursday, November 20th, coinciding with President Obama’s announcement regarding his forthcoming executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memo to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) directing the agencies to take action on the president’s announcements. The DHS memo provides a framework for changes the government wishes to make, relating to skilled immigration, to alleviate some longstanding problems in our business immigration system.

Many of the suggested changes are laudable but regulatory rulemaking will be required for most of these changes to take effect. Unfortunately, whereas President Obama was very clear in his announcement about timelines for the changes he is taking to protect certain undocumented immigrants, timeframes for producing regulations or for most of the business immigration changes are lacking in the secretary’s memo. The business community is left to wonder when these announced changes will materialize and what specific forms they will take.

Modernize the Employment-Based Immigrant Visa System

There are caps (quotas) on various types of immigrant visas (green cards) that result in extremely long backlogs and delays for people born in certain countries such as India and China.  If two software engineers at the same company are sponsored for green cards at the same time, and one of them is from Germany and the other is from India, the German applicant will get his green card in about two years while it will likely take his Indian colleague ten years to conclude the process. During this excruciatingly long waiting period, the Indian software engineer is supposed to remain in the same position for which he was originally sponsored. This benefits neither the employer nor the software engineer. Continue Reading

The difference a day can make: States devise their own remedies for criminal immigration reform

Posted in Immigration Criminal Issues, Immigration Policy, Immigration Reform

While the three branches of federal government fire off salvos on immigration reform, states are finding ways to tackle challenges to the federal criminal immigration landscape.

Earlier this year, California Governor Jerry Brown signed into law SB 1310, a bill that reduces the maximum possible sentence for a misdemeanor in California from 365 days to 364 days.  Although a seemingly inconsequential change for United States citizens, this single day has the potential to impact to lives of many noncitizens convicted of misdemeanor offenses.

The term “aggravated felony” refers to a subset of federal immigration offenses that will result in deportation.  To qualify as an aggravated felony, a state crime need not be “aggravated” or a “felony” because federal law does not take into account state law distinctions between felony and misdemeanor crimes. Aggravated felonies carry the harshest immigration consequences, including removal from the U.S. without a hearing and outright bars to relief from removal if a hearing is held.  When Congress initially created the term, it included only murder, federal drug trafficking, and illicit trafficking of certain firearms and destructive devices.  However, over time Congress has expanded its reach and today it includes even minor crimes that carry a sentence of 365 days or more. As a result of this expansion, state law misdemeanors with a sentence of 365 days or more may be an aggravated felony under federal immigration law.

Therein lays the difference a day can make.  By reducing the possible maximum sentence to 364 days, noncitizens with minor criminal convictions are no longer subject to the aggravated felony provision and have the opportunity to seek relief from removal or a dismissal of charges altogether.  California is not the first state to make this small but incredibly impactful change.  In 2013, Nevada reduced its maximum sentence for a gross misdemeanor to 364 days, and in 2011 Washington State did the same.

In addition to changing legislation, states are also creating pilot programs to provide representation to individuals in removal proceedings.  In 2013, New York announced the creation of The New York Immigrant Family Unity Project, which will create a position in the New York Public Defender’s Office for an attorney who will only represent noncitizens in immigration court. In October 2014, Santa Clara County in California restored funding for a similar program.

With President Obama’s announcement of prioritizing “felons, not families” for deportation, 364 day sentence limits could become ever more important.

Keeping Immigration Site Visits Civil and Focused

Posted in H-1B, L-1 Visas

US Citizenship and Immigration Services (USCIS) empowers its Fraud Detection and National Security (FDNS) officers to make unannounced site visits to employers of H-1B and L-1 workers.  The stated purpose of these site visits is to ensure the employers and employees in these visa situations are complying with the applicable laws and rules that govern the visa category.

The inspectors conducting these site visits are supposed to limit their inquiries to the facts that relate to the particular visa petition under review.  Certainly it is legitimate to check on the existence of the employer and to determine whether the beneficiary of the visa petition is employed in the position described in the petition, at the worksite location identified in the petition, and at (or above) the salary promised in the petition.

But a site visit is not an excuse for an immigration inspector to engage in a fishing expedition or to treat the employer and/or visa beneficiary in a manner that is anything less than civil.  Unfortunately, as site inspectors fan out around the country to conduct these site visits, evidence is growing that a subset of the inspectors are using the site visits as an excuse to ask impermissible questions, particularly of the employers in these situations.  For example, companies report that inspectors have asked them how many green card holders they employ.  This is an inappropriate question.  It implies that the employer may lawfully ask the employee to prove his or her status as a green card holder when in fact, under most circumstances, it is not.  Asking this question in a site visit is improper for two reasons:  it is clearly beyond the scope of the facts relating to a single visa petition, and it could lead an unwitting employer to engage in actionable discriminatory behavior.  While the employment laws require that employers confirm through the I-9 process that an employee is authorized to work in the US, it is up to the employee to decide which of the documents listed on the I-9 they use for this purpose and US employers generally may not ask if their employees if they are green card holders.  (There is a limited exception for employers whose work requires employees to hold a national security clearance).  And most employers’ records will not contain this information.  Even if someone had a green card when he or she was hired, whether or not that person is still a green card holder or has since become a naturalized US citizen is none of the employer’s business.

Similarly, reports have surfaced of site visits where inspectors were less than civil in their tone and their questions posed to employers, particularly smaller, start-up companies.  This is simply unacceptable.  Many new businesses petitioning for an L-1 or H-1B worker face inappropriate hostility from the government – instead of having their petitions approved, they are besieged by unduly burdensome, repetitive requests for information, much of which was initially submitted to the government and conveniently overlooked or ignored by USCIS.  By the time USCIS grudgingly approves the visa petition, the company and its visa beneficiary often feel that they have been subject to such unduly heavy scrutiny that it borders on harassment.  It only adds insult to injury to follow the visa approval with a site visit where the inspector is not courteous.

There is nothing wrong with conducting site visits to check the facts: let’s keep the visits to that please.