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red markerUndocumented immigrants who meet certain criteria can apply for waivers allowing them to proceed with an immigrant visa petition. One type of waiver is known as a “provisional unlawful presence waiver” (PUPW). Individuals with six months to one year of accrued unlawful presence in the U.S. who voluntarily depart the U.S. are deemed inadmissible for a period of three years. A PUPW allows a person who meets these criteria to request a waiver of the three-year inadmissibility period, provided they leave the U.S. and apply to reenter at a U.S. consulate abroad. A new rule that took effect at the end of August 2016 streamlines the application process and expands eligibility for PUPWs. 81 Fed. Reg. 50243 (Jul. 29, 2016). Previously, PUPWs were only available to people seeking family-based immigrant visas. The new rule makes them available for employment-based and other visa petitions.

To qualify for a PUPW, an individual must be inadmissible under § 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(9)(B)(i)(I). This provision applies to people (1) who have been unlawfully present in the U.S. for more than 180 days but less than one year, (2) who voluntarily depart the country, either on their own or with the government’s permission under 8 U.S.C. § 1229c, (3) prior to the beginning of removal proceedings under 8 U.S.C. §§ 1225(b)(1) or 1229a.

People covered by this provision of the INA are ineligible for readmission for three years, beginning on the date they leave or are removed from the U.S. The PUPW waives the six- to 12-month period of unlawful presence, making them eligible for an immigrant visa without the three-year bar.

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Department of LaborBefore an employer in the U.S. can hire a worker from abroad for a job here, the employer must petition for a visa for the worker. This requires a labor certification from the Department of Labor (DOL). The employer must establish that it is in compliance with U.S. labor law regarding the employment of someone from outside the country. In a recent case, a DOL certifying officer (CO) denied a request for certification on the basis that the job posting disadvantaged U.S. workers. The DOL’s Board of Alien Labor Certification Appeals (BALCA) reversed the CO’s decision. In re Cosmos Foundation, Inc., No. 2012-PER-01637, dec. order (BALCA, Aug. 4, 2016).

Permanent labor certifications are required for employment-based immigrant visas, through which an immigrant employee can come to the U.S. with the intention of staying permanently. The main purpose of a labor certification is to demonstrate that no qualified U.S. workers are available to fill a position, and hiring someone from abroad will not negatively affect wages for workers here. A similar process, known as the labor condition application, applies to petitions for temporary visas, such as the H-1B visa program. The Program Electronic Review Management (PERM) system, an electronic application system established by the DOL in 2005, is supposed to enable the DOL to process an application in 60 days or fewer.

DOL regulations impose numerous requirements for labor certifications. The Cosmos case involved an alleged defect in the way the employer advertised the position. If an employer places a job advertisement in a newspaper or professional journal before applying for a labor certification, the advertisement must describe the job in terms that are “specific enough to apprise the U.S. workers of the job opportunity for which certification is sought.” 20 C.F.R. § 656.17(f)(3).

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notepadThe H-1B “specialty worker” visa program allows individuals who meet certain criteria regarding education and job skills to come to the U.S. on a temporary basis to work in a qualifying job. The U.S. Department of Labor (DOL) is responsible for administering parts of the H-1B program. The DOL’s Wage and Hour Division (WHD) enforces regulations regarding the conditions of employment for H-1B workers. In July 2016, the Office of Administrative Law Judges (OALJ), also part of the DOL, affirmed an order from the WHD finding that an employer violated DOL regulations by failing to notify the Department of Homeland Security (DHS) that it had terminated an H-1B employee. Adm’r v. ME Global, Inc., No. 2013-LCA-00039, dec. and order (OALJ, Jul. 29, 2016). The OALJ ordered the employer to pay almost $183,000 in back wages.

In order to obtain an H-1B visa for an employee, an employer must get approval from both the DOL and DHS. Obtaining the DOL’s approval requires submission of a labor condition application (LCA). Among multiple other requirements, this document must state that the employer will pay the H-1B worker a fair wage and provide fair working conditions. 8 U.S.C. § 1182(n)(1). An employer is required to pay wages to an H-1B worker for as long as they are working and during any period of time that they are not working “due to a decision by the employer.” 20 C.F.R. § 655.731(c)(7)(i).

If an H-1B employee becomes “nonproductive” because of “conditions unrelated to employment” that the employee requests, because the employee is unable to work due to accident or illness, or after “a bona fide termination of the employment relationship,” the employer is not required to pay wages. Id. at § 655.731(c)(7)(ii). The issue presented to the OALJ in ME Global was whether a “bona fide termination” had occurred.

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world mapFederal immigration law allows U.S. employers to petition for an immigrant visa for a current or prospective employee, and citizens or lawful permanent residents may do so for a family member. The length of time it takes for the government to approve an immigrant visa petition mainly depends on two factors:  the type of visa sought and the prospective immigrant’s country of origin. Most family- and employment-based visas are subject to annual numerical limitations. Federal law also imposes an annual cap on the number of numerically limited visas available to citizens of any one country. A bill currently pending in the U.S. Congress, H.R. 213, or the Fairness for High-Skilled Immigrants Act of 2015, would eliminate or increase the limits placed on each country. The bill likely has little to no chance of passing during the current Congressional session, but it offers a useful look at this particular system of numerical caps.

Some prospective immigrants are not subject to any numerical limitation, such as “immediate relatives” of U.S. citizens. 8 U.S.C. § 1151(b). All other prospective immigrants are subject to annual caps of up to 480,000 family-based and 140,000 employment-based immigrants. Id. at §§ 1151(c), (d). These immigrants are assigned to employment- and family-based immigrant visa categories, based on either the type of job involved or the petitioner’s own status and the immigrant’s relationship to the petitioner. 8 U.S.C. § 1153. In addition to these annual caps, the total number of visas given to citizens or nationals of any one country in a fiscal year cannot exceed seven percent of the total number of authorized visas. 8 U.S.C. § 1152(a)(2). For dependencies of a foreign country, the limit is two percent. Id.

This per-country numerical limit largely affects nationals of some countries more than others. The monthly Visa Bulletin issued by the U.S. Department of State, which indicates how long beneficiaries of each type of immigrant visas petition may expect to wait, illustrates the disparate impact on countries with a high volume of petitions. The Visa Bulletin shows the priority dates for each immigrant visa category that are currently being processed by the government. A petition’s “priority date” is roughly equivalent to its filing date. The Visa Bulletin further distinguishes between petitions received from China, India, Mexico, the Philippines, and all other countries. According to the August 2016 Visa Bulletin, the current priority date for the “F1” family visa category for most countries is May 22, 2009, a waiting period of just over seven years. For the Philippines, however, the priority date is March 22, 2005. For Mexico, it is March 8, 1995.

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dogThe process of applying for a visa to come to the United States is lengthy and complex, even at its best. Two bills currently pending in the U.S. Congress would modify various aspects of the visa application process, and they could possibly complicate the process even further for some prospective immigrants. H.R. 5203, the Visa Integrity and Security Act (VISA) of 2016, would affect how petitions are submitted, the extent of Department of Homeland Security (DHS) background checks, and the burden of proof to establish visa eligibility. H.R. 5253, the Strong Visa Integrity Secures America Act (SVISAA), would modify procedures for vetting visa applicants and for sharing information within DHS and between DHS and the Department of State (DOS).

U.S. immigration law provides for two broad categories of visas. An immigrant visa allows a person to come to the U.S. with the intention of remaining permanently, usually after qualifying through a family member or an employer. Someone who comes to the U.S. on an immigrant visa often applies to adjust their status to lawful permanent residence, also known as a “green card.” Once they have been in the U.S. long enough, they might be able to become a naturalized U.S. citizen. By contrast, a nonimmigrant visa allows a person to come to the U.S. temporarily for a specific purpose. A B-1 tourist visa, for example, allows a person to visit the U.S. but not to work, while an H-1B visa allows a person to hold a job in the U.S. while the visa remains valid. Nonimmigrant visa holders who remain in the U.S. after their visa expires are said to be “overstaying” their visa.

A person petitioning for a visa typically files the petition with U.S. Citizenship and Immigration Services (USCIS), which is part of DHS. A prospective immigrant located outside the U.S., however, has to go through a U.S. consulate in the country where they are located. The U.S. consulates are part of DOS.

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The Obama administration announced a program in late 2014 that would allow many undocumented immigrants to remain in the country if they are parents of U.S. citizens or lawful permanent residents (LPRs). The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program has never taken effect, due to a lawsuit by multiple state governors challenging the White House’s authority to establish such a program. In late June 2016, DAPA suffered a major setback in the Supreme Court, from which it might not recover. The court’s eight justices split evenly on the case, meaning that the lower court decisions blocking the program are affirmed by default. United States v. Texas, 579 U.S. ___ (2016).immigrants

The Deferred Action for Childhood Arrivals (DACA) program, first implemented by the White House in 2012, allows undocumented immigrants who entered the U.S. as children, and who meet certain other criteria, to remain in the U.S. and obtain work authorization for two years, subject to renewals by the administration. Contrary to much of the opposing rhetoric, DACA does not confer lawful immigrant status on its beneficiaries. Instead, it is an agreement by the Department of Homeland Security (DHS) to defer the enforcement of immigration laws for a specified period of time. Work authorization is certainly a benefit, but it is one that is within the Executive Branch’s authority to grant. DACA is not comparable to the status conferred by a visa or green card.

DAPA would have extended similar deferrals to undocumented parents of citizens and LPRs who meet the program criteria. About 3.6 million people, out of an estimated 11 million total undocumented immigrants living in the U.S., might have been eligible for DAPA. The majority of people believed to be DAPA-eligible have lived in the U.S. for at least 10 years.

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lottoH-1B visas, which allow skilled workers in “specialty occupations” to come to the U.S. temporarily, are in extremely high demand. Federal immigration law caps the total number of visas the government may issue each year at 65,000. Each year, U.S. Citizenship and Immigration Services (USCIS) begins accepting H-1B visa petitions for the upcoming fiscal year on a designated date, and each year, the number of petitions received hits the cap in a matter of days. Once it has received enough petitions to meet the cap, USCIS uses a computerized selection process to determine who will receive H-1B visas. Little is known, however, about this selection process. A lawsuit filed by two advocacy groups seeks to uncover more information about it. Am. Imm. Lawyers Assoc., et al. v. U.S. Citizenship and Imm. Svcs., No. 1:16-cv-00856, complaint (D.D.C., May 20, 2016).

A “specialty occupation,” according to federal immigration law, requires the use of “highly specialized knowledge,” and the applicant must have “a bachelor’s or higher degree” in a particular field of study “as a minimum for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1). Companies in the STEM fields (Science, Technology, Engineering, and Mathematics) frequently seek to hire skilled workers from abroad through the H-1B program. USCIS is only permitted by law to begin accepting H-1B petitions for the upcoming fiscal year six months in advance. It typically opens the “H-1B season” on April 1, since the federal government’s fiscal year begins on October 1. For more than a decade, demand for H-1B visas has quickly exceeded the supply.

Competition for H-1B visas is fierce, although once an employer gets a petition filed, whether or not that petition is approved seems to be up to chance. If USCIS receives enough petitions to meet the cap in the first five days, it uses a “lottery” to determine which petitions will proceed to adjudication. It returns the petitions that are not selected to the petitioning employers and refunds their filing fees. According to the lawsuit filed by the American Immigration Lawyers Association (AILA), USCIS has provided few, if any, details about how this lottery system works, despite being highly important information for both employers and specialty workers.

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EEOC SealThe extent of protection offered to undocumented immigrants by various state and federal laws is a matter of ongoing debate, both in the court system and among politicians. The Fourth Circuit Court of Appeals recently issued a ruling allowing the Equal Employment Opportunity Commission (EEOC) to investigate a discrimination claim under Title VII of the Civil Rights Act of 1964 on behalf of an undocumented immigrant. EEOC v. Maritime Autowash, Inc., No. 15-1947, slip op. (4th Cir., Apr. 25, 2016). The very limited question before the court was whether the EEOC could subpoena the employer’s records. Despite precedent stating that undocumented immigrants lack standing under Title VII, the court found that the employer should not be allowed “to both hire illegal immigrants and then unlawfully discriminate against those it unlawfully hired.” Id. at 14.

Federal immigration law prohibits employers from recruiting or hiring “aliens” who are not authorized to work in the U.S., or from continuing to employ such a person after learning of their lack of work authorization. 8 U.S.C. §§ 1324a(a)(1) – (2). The law also includes provisions prohibiting employment discrimination on the basis of national origin or citizenship. The protections relating to citizenship, however, do not extend to people who lack lawful immigration status. 8 U.S.C. § 1324b(a)(3). The question is therefore whether undocumented immigrants can make a claim under Title VII, which protects employees from discrimination based on their “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).

Prior to the Maritime decision, Fourth Circuit precedent held that individuals without lawful immigration status lacked standing to bring a claim under Title VII. Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184 (4th Cir. 1998). A New Jersey court, despite being located in a different circuit, cited this ruling when it dismissed an undocumented immigrant’s claim for lack of standing under state antidiscrimination law. Crespo v. Evergo Corp., 841 A.2d 471, 473-73 (N.J. App. 2004). Courts in New York have reached similar conclusions, although one U.S. district court expressed doubt that the Second Circuit would follow Egbuna in a similar situation. Olvera-Morales v. Sterling Onions, Inc., 322 F.Supp.2d 211, 220 (N.D.N.Y. 2004).

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Human_traffickingThe New York City Mayor’s Office announced earlier this year that the New York City Commission on Human Rights (NYCCHR) will issue certifications for U and T visas, which are available to victims of human trafficking and certain other crimes. Federal immigration law allows certain state and local agencies to issue certifications, which are a required component of a petition for these types of visas. The NYCCHR is reportedly the first anti-discrimination agency in a large U.S. city to offer U and T visa certifications.

Congress created two types of visas in the Victims of Trafficking and Violence Protection Act of 2000. The T visa is available to up to 5,000 people per year who “[are] or ha[ve] been a victim of a severe form of trafficking in persons.” 8 U.S.C. §§ 1101(a)(15)(T), 1184(o). Federal law defines “severe forms of trafficking in persons” (SFTP) to include sex trafficking and various forms of forced labor. 22 U.S.C. § 7102(9). In order to qualify for a T visa, an individual must show that they have complied with any applicable law enforcement investigation, to the extent that they are able. Finally, a person must be able to demonstrate that removal would cause them “extreme hardship involving unusual and severe harm.” 8 U.S.C. § 1101(a)(15)(T)(i)(IV).

The U visa is available to up to 10,000 people per year who have “suffered substantial physical or mental abuse” due to certain criminal acts. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The statute lists a wide range of offenses, including torture, trafficking, rape and sexual assault, involuntary servitude, and extortion and blackmail. Id. at § 1101(a)(15)(U)(iii). The crime must have occurred on U.S. territory or must otherwise be covered by U.S. law. The person must demonstrate that they have information about such criminal activity and that they have been or could be helpful to law enforcement. Spouses, children, and other dependents of a person who meet the criteria for either visa may also qualify.

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FirmBee [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration is a critical component of the American economy, with employers constantly petitioning to bring employees here from abroad for particular jobs. This is especially true, for a variety of reasons, in the STEM fields (Science, Technology, Engineering, and Mathematics). Several studies released in the past few months demonstrate the extent of immigrant involvement in the economy, particularly in business startups. Immigrant founders now account for more than one-fourth of all new startups, as well as over half of startups valued at $1 billion or more. Immigrants also make up a significant portion of New Jersey entrepreneurs. Several methods of immigration are available for aspiring U.S. entrepreneurs.

The type of visa most commonly associated with the high-tech field is the H-1B visa. This is a nonimmigrant visa, meaning that it is officially only available to people who do not intend to remain in the U.S. permanently. An employer must petition for the visa on behalf of an employee. Federal law caps the total annual number of visas at 65,000, plus another 20,000 for people with advanced degrees. U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for fiscal year 2016 on April 1, 2015, and it reported that the number of petitions received exceeded the annual cap six days later. For a total of 85,000 available visas, the agency reported receiving almost 233,000 petitions.

The H-1B visa is valid for three years, and it may be extended for another three years. Various provisions allow an H-1B visa holder to change jobs, or to extend their stay if they are working toward seeking permanent residence, but the overall purpose of the visa is a temporary stay. It is therefore far from ideal for someone who wants to start a new business. Employment-based (EB) immigrant visas allow a person to come to the U.S. for a job with the intention of adjusting status to that of a permanent resident. EB immigration also requires a petition filed by an employer, and it is subject to annual numerical limits. Unlike H-1B visas, however, they are far less subject to backlogs.

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