Immigration Law

Innovative thinking and practical solutions

Immigration Policy by Lottery?

Posted in H-1B, Nonimmigrant Visas

The diversity visa green card lottery has been an important part of U.S. immigration law for the last 20 years.  It allows 55,000 foreign nationals to immigrate each year and was implemented to fulfill the worthy goal of increasing the diversity of immigrants in the U.S.  This policy is implemented each year after government analysis of the countries of origin of immigrants in other green card categories and then allocating the 55,000 green cards allowed by law amongst those underrepresented countries of origin.

There is another immigration lottery that occurs around this time of year for one of the most essential visa categories to U.S. business—the H-1B.  Surprisingly, and unlike the diversity visa lottery, this lottery is not based on careful analysis and on no important policy.  It is based only on an annual arbitrary quota.  This yearly lottery is for the allocation of H-1B specialty occupation visas which happens during the first five business days of April.  In 2014, U.S. Citizenship and Immigration Services (USCIS) received 172,500 H-1B petitions during the first week of April for the 85,000 H-1B quota numbers allowed by law.  That’s over twice as many H-1B petitions as the quota allows.  The same thing has now happened this year as recently announced by USCIS and summarized in our Immigration Alert: H-1B Cap Hit for Fiscal Year 2016.

USCIS will now use a computer based, random selection process to select the H-1Bs for adjudication.  It’s too soon for USICS to provide the exact number of H-1B filings for this year, but due to the recovering economy and increased pace of hiring by U.S. employers, most expect the number of filings to be even higher—but for the same 85,000 quota allocation.  So, this means another lottery selection process—a purely random lottery.  Yes, that’s right–a critical component of U.S. immigration policy allowing U.S. employers to fill shortages in the most needed occupations in information technology, the sciences, engineering and other professions, is determined by chance!  If an H-1B petition is selected out of the lottery, it is officially receipted by USCIS for adjudication.  H-1B petitions not selected are returned.

Not surprisingly, employers who are new to the H-1B process are shocked when they learn this.  These employers need to fill key shortages in their workforce, but cannot plan for their business needs due to the H-1B quota lottery.  One of the business communities’ most common complaints about government policy is lack of predictability.  I can’t think of anything more unpredictable for a business than a government policy that relies on a lottery to determine which foreign nationals will and will not be eligible for employment!

Mobile Passport Control Expansion

Posted in CBP News

In its most recent foray into utilizing technology at the border, U.S. Customs and Border Protection (CBP) expanded Mobile Passport Control (“MPC”) to Miami International Airport. MPC is an authorized app available via both the Google Play and Apple iTunes stores that allows eligible travelers to submit their passport and customs information to CBP prior to inspection. Thus far the app is only available to U.S. citizens and Canadian citizen visitors arriving at either Miami or Atlanta.

Travelers arriving at Atlanta’s Hartsfield-Jackson International Airport have been able to use the app since August 2014. When both the app and the airport kiosk are working, the process has received very positive reviews. However, as recently as March 2, 2015, the app experienced upgrade bugs requiring users to re-register. At least one user complained in a review that the single kiosk at Atlanta was broken with no information provided when he tried to utilize the app.

Although CBP is expected to expand MPC to more airports this year, the limited roll-out and limitations of MPC still leaves plenty of benefit in applying for fee-charging CBP programs such as Global Entry. While MPC is only available to U.S. and Canadian citizens, Global Entry is available to otherwise eligible U.S. permanent residents and visa holders from Germany, the Netherlands, Panama, and South Korea, and Mexican nationals. However, up to four profiles can be created for families traveling together in the MPC app, whereas each individual needs to submit and pay for a separate application for Global Entry.

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