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visa mapThe new president issued three executive orders (EOs) in January 2017 regarding immigration. The most recent of the three, EO 13769, is the most well-known. Descriptions range from a “travel ban” to a “Muslim ban,” depending on who is describing the order. The EO, which bars entry to the U.S. from seven countries with majority-Muslim populations, is currently subject to a temporary restraining order, and multiple court challenges are pending in courts around the country. New Jersey’s Newark Liberty International Airport saw a considerable amount of confusion after the issuance of the EO, when federal agents attempted to enforce the order without clear guidelines. All we can offer is a very general overview of the EOs, since their impact—and even their legal validity—remains uncertain.

The first order, EO 13767, is entitled “Border Security and Immigration Enforcement Improvements.” 82 Fed. Reg. 8793 (Jan. 25, 2017). It directs immigration officials to increase patrols and deportations in response to an alleged “recent surge of illegal immigration at the southern border with Mexico.” Id. at 8793. It also makes “the immediate construction of a physical wall on the southern border” the official policy of the federal government. Id.

EO 13768 is entitled “Enhancing Public Safety in the Interior of the United States.” 82 Fed. Reg. 8799 (Jan. 25, 2017). It primarily sets enforcement priorities with regard to deportations. The order also addresses so-called “sanctuary jurisdictions,” which it defines as non-federal governments that “willfully refuse to comply with” a statute regarding communication between local and federal law enforcement. Id. at 8801, 8 U.S.C. § 1373. The federal government is probably limited, however, in its authority to require local governments to participate in immigration enforcement, an area of exclusively federal jurisdiction under the Constitution. See, e.g. Printz v. United States, 521 U.S. 898 (1997); South Dakota v. Dole, 483 U.S. 203 (1987).

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Pulaski SkywayA ruling from the Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services (USCIS) establishes new eligibility criteria for “national interest waivers” (NIWs). Matter of Dhanasar, Int. Dec. No. 3882, 26 I&N Dec. 884 (AAO 2016). The NIW is a type of employment-based immigrant visa petition in the second preference (EB-2) category. Normally, a petition for an EB-2 immigrant visa must include an employment offer and a labor certification from the Department of Labor. The NIW waives those requirements. USCIS had relied on the decision in Matter of N.Y. State Dep’t of Transp. (“NYSDOT”), 22 I&N Dec. 215 (Acting Assoc. Comm’r 1998), to determine eligibility for NIWs. The decision in Dhanasar overturns NYSDOT and establishes a more consistent standard.

EB-2 visas are available to individuals “who are members of the professions holding advanced degrees” or who have “exceptional ability in the sciences, arts, or business.” 8 U.S.C. § 1153(b)(2)(A). According to the statute, the individual’s exceptional ability must have the potential to “substantially benefit” the nation. Id. The individual must have an offer from an employer in the U.S., and they must obtain a labor certification, which basically shows that hiring an immigrant will not adversely affect U.S. workers. 8 C.F.R. § 204.5(k)(4)(i); 20 C.F.R. §§ 656.17(h)-(i).

USCIS is authorized by statute to waive the job offer and labor certification requirement by issuing an NIW, if doing so would “be in the national interest.” 8 U.S.C. § 1153(b)(2)(B)(i), 8 C.F.R. § 204.5(k)(4)(ii). The NYSDOT decision established a three-part test that required a prospective immigrant to establish (1) that there is “substantial intrinsic merit” in their field of employment, (2) that the likely benefits of their work will be “national in scope,” and (3) that requiring a labor certification would “adversely affect[]…the national interest.” Dhanasar, 26 I&N Dec. at 887, quoting NYSDOT, 22 I&N Dec. at 217.

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copyright symbolFederal immigration law identifies multiple criteria for admissibility to the U.S. on an immigrant or nonimmigrant visa, ranging from health issues to criminal history and national security concerns. An allegation of inadmissibility may result in the denial of a visa petition or the initiation of removal proceedings for someone who is already in the country. “Inadmissibility” is different from “deportability,” at least in a legal sense. In either case, the government may try to remove, or “deport,” the individual. A person alleged to be inadmissible may be able to obtain relief through a waiver or certain other procedures, such as cancellation of removal. The first issue to consider, however, is whether the government has alleged valid grounds for inadmissibility. A recent decision by the Board of Immigration Appeals (BIA) considered whether criminal copyright infringement constitutes a “crime of moral turpitude” under the Immigration and Nationality Act (INA). The court ruled in the government’s favor on this question in Matter of Zaragoza-Vaquero, Int. Dec. No. 3873, 26 I&N Dec. 814 (BIA 2016).

The INA defines an “inadmissible” person as someone who is “ineligible to receive visas and…to be admitted to the United States.” 8 U.S.C. § 1182(a). Perhaps one of the most common grounds for inadmissibility is “presen[ce] without admission or parole,” id. at § 1182(a)(6)(A)(i), meaning that the person entered the U.S. without a visa or other official permission from the federal government. A person who has been lawfully admitted to the U.S. as an immigrant or nonimmigrant could be deemed “deportable” under certain circumstances. The key difference is that an inadmissible person, by legal definition, should never have entered the U.S., while a deportable individual has lost the legal right to remain. Inadmissible people are also deportable under the INA, id. at § 1227(a)(1)(A).

The INA identifies several types of criminal convictions that could render someone inadmissible, including any “crime of moral turpitude.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). The statute does not define the term “moral turpitude,” but the BIA states that caselaw has defined it as an offense that is “inherently base, vile, or depraved, and contrary to accepted rules of morality and the duties owed between persons or to society in general.” Zaragoza-Vaquero, 26 I&N Dec. at 815

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US CongressWith a new administration preparing to move into the White House in January 2017, bringing with it a decidedly different take on immigration policy from the outgoing administration, it seems safe to say that the current state of immigration law in this country is uncertain. Most immigrant and nonimmigrant visa programs are based on legislation passed by Congress and implemented through rules and regulations created by the Executive Branch. Congress has allowed a short-term extension for several immigration programs through April 28, 2017, in the Further Continuing and Security Assistance Appropriations Act (FCSAAA) of 2017, Pub. L. 114-254 (Dec. 10, 2016).

The FCSAAA offers an excellent example of the complexity of both the government’s budget and its budgeting process. The bill amends the Continuing Appropriations Act (CAA) of 2017, Pub. L. 114-223, Div. C, 130 Stat. 908 (Sep. 29, 2016). That bill, in turn, authorized the appropriation of funds that Congress had already authorized in previous bills. Appropriations for immigration-related programs are mostly found in the Department of Homeland Security Appropriations Act of 2016 (DHSAA), Pub. L. 114-113, Div. F, 129 Stat. 2493 (Dec. 18, 2015). Taken together, these bills extend funding for some immigration programs, including the following.

E-Verify

Federal immigration law prohibits employers from employing anyone who is not a U.S. citizen or lawful permanent resident and who has not obtained authorization to work in the U.S. from the government. Employers must review certain documents presented by new hires to verify that they fit the criteria for work authorization, and they must maintain a record of this verification on Form I-9. Congress first provided for the creation of an electronic system employers could use to verify employment eligibility, commonly known as “E-Verify,” in legislation passed in 1996. See 8 U.S.C. § 1324a note.

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currencyImmigration has become a particularly controversial political topic over the past year or two, but immigrants form a critical part of our culture and our economy. Recent reports have further confirmed immigrants’ economic impact, both in New Jersey and nationwide. New Jersey is currently suffering a net population decline, as residents move elsewhere. Immigrants are making up for some of that loss. They are also starting new businesses at a considerable rate, which helps local economies and the state as a whole. Numerous immigration programs play a role in this, such as the EB-5 investor visa program and the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program. While the forthcoming change in the White House is bringing significant uncertainty for immigrants, it is worth noting immigration’s economic benefits.

Congress established the EB-5 Immigrant Investor Program to encourage investment, entrepreneurship, and job creation. It is available to immigrants who intend to invest a minimum amount in a “new commercial enterprise” in the U.S., which will create a minimum number of new jobs for U.S. citizens or permanent residents. 8 U.S.C. § 1153(b)(5). According to the December 2016 Visa Bulletin, the processing of EB-5 visa petitions is current for everyone except individuals from mainland China.

At least 3,000 EB-5 visas each fiscal year must be for new commercial enterprises in “targeted employment areas” (TEAs), defined as either a “rural area” or an area with at least 150 percent of the national average unemployment rate. Id. at § 1153(b)(5)(B). The minimum investment amount to qualify for an EB-5 visa is currently $1 million. 8 C.F.R. § 204.6(f)(1). For a TEA, the minimum investment is $500,000. Id. at § 204.6(f)(2). The investment must create at least 10 full-time jobs for “qualifying employees.” Id. at § 204.6(j)(4). A report issued by the U.S. Government Accountability Office (GAO) in September 2016 found that a substantial majority of recent EB-5 petitioners intended to invest in TEAs.

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George Washington BridgeThe recent presidential election has brought a massive amount of uncertainty for immigrants, prospective immigrants, their employers, and their families. The uncertainty ranges from the new president-elect’s rhetoric regarding deportations to the future of various permanent and temporary visa programs. The extent to which local governments participate in immigration enforcement potentially affects all immigrants. The U.S. Constitution gives the federal government exclusive authority over immigration, but enforcement efforts have expanded to include local law enforcement. Many local officials have pushed back in recent years, stating that they will not actively participate in federal immigration enforcement. Multiple court decisions support this position, but it remains controversial. Cities that have taken this position are often known as “sanctuary cities,” a term that can be both descriptive and pejorative, depending on the circumstances.

Part of the problem with addressing this issue is the lack of a clear definition of a “sanctuary city.” It does not mean that anyone in such a city is “safe” from immigration enforcement. At a minimum, it means that local officials will not cooperate with simple requests from a federal agency like Immigration and Customs Enforcement (ICE). Federal immigration officials routinely review county jail rosters to check for possible immigration violations, and they place “detainers” on people they believe may be undocumented or otherwise in violation of federal immigration laws.

Congress has the sole authority “to establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. This means that the federal government has exclusive jurisdiction over immigration questions. Immigration proceedings are federal civil matters. Local courts therefore have no jurisdiction to adjudicate such questions with regard to inmates in their custody. A detainer amounts to a request that local law enforcement continue to hold a person beyond the time they would otherwise be released, until ICE can take custody of them. Many local officials are saying that they will not comply with such requests unless they are accompanied by additional legal authority, such as a warrant or court order.

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Federal Courthouse BrooklynThe White House’s 2014 executive actions on immigration have been cause for controversy from the moment President Obama announced them almost two years ago. The Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program prompted a lawsuit by 26 state governments. A U.S. district judge in Texas issued an injunction against the program, and the Department of Homeland Security (DHS) halted the implementation of DAPA nationwide in response. A new lawsuit filed in New York, however, challenges this action by DHS. Batalla Vidal v. Baran et al., No. 1:16-cv-04756, am. complaint (E.D.N.Y., Sep. 29, 2016). The plaintiff claims that the Texas court that granted the injunction lacked the authority to bind the DHS in New York.

The White House announced DAPA on November 20, 2014. The program would be similar to the existing Deferred Action for Childhood Arrivals (DACA) program, and it would cover qualifying undocumented parents of U.S. citizens and lawful permanent residents. The program represents an agreement by the federal government not to pursue (to “defer”) immigration enforcement action against a person for a defined period of time. To be eligible, an individual must show that they are a parent of a citizen or permanent resident, that they have been continuously present in the U.S. since 2010, and that they are not an “enforcement priority” under the administration’s immigration enforcement criteria. DAPA recipients may also be eligible for work authorization.

The Texas court granted the temporary injunction in February 2015. Texas, et al., v. United States, 86 F.Supp.3d 591 (S.D. Tex. 2015). The injunction covered DAPA and expansions to DACA included in the 2014 executive actions, but it did not affect the existing DACA program. The Fifth Circuit denied a request to stay the injunction in May 2015, 787 F.3d 733 (5th Cir. 2015), and affirmed it that November, 809 F.3d 134 (5th Cir. 2015). When the case went to the Supreme Court, the death of Justice Antonin Scalia meant that only eight justices were available to hear the case, and they split 4-4. 579 U.S. ___ (2016). The Fifth Circuit’s ruling was therefore allowed to stand, but with no adjudication on a national level.

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poultryImmigration law is deeply intertwined with employment in the United States, and the extent to which specific employment statutes apply to various immigrant statuses is under near-constant review by the courts. In the midst of this complex system, an employer involved in a dispute with the Equal Employment Opportunity Commission (EEOC) has made a rather bold accusation against some of its employees. It is claiming that the employees who complained to the EEOC are falsely claiming harassment in order to qualify for U visas, which are available to certain “victim[s] of criminal activity.” 8 U.S.C. § 1101(a)(15)(U). A recent federal appellate ruling essentially allows the employer to obtain information on the claimants’ immigration status. Cazorla, et al. v. Koch Foods of Miss., LLC, No. 15-60562, slip op. (5th Cir., Sep. 27, 2016).

Laws at the federal, state, and local levels protect employees from workplace discrimination on the basis of categories like race, sex, religion, color, and national origin. Title VII of the Civil Rights Act of 1964 protects these categories, and laws in many jurisdictions offer even broader protection. The EEOC receives complaints from employees, former employees, and job applicants about alleged unlawful conduct. After investigating the claims, the EEOC may pursue a civil enforcement action on behalf of the complainants, or it may authorize them to file suit. Title VII and most other anti-discrimination statutes do not limit their coverage based on immigration status, although the extent of the protection they offer to undocumented immigrants remains controversial.

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The H-1B visa allows people in “specialty occupations” to live and work in the United States temporarily. A lesser-known aspect of the program also allows fashion models to come to the U.S. to work. Federal law limits the annual number of new H-1B visas that the government can issue, meaning that many individuals seeking an H-1B visa for a particular fiscal year will be disappointed. Several other types of visas are available for fashion models who want to come to the U.S. for work, provided they meet the qualifications. Fashion model visas have been the subject of media attention in recent months, largely due to allegations arising from the presidential election. Specifically, several models formerly employed by one candidate claim that they were present in the U.S. with tourist visas, which would not have allowed them to work as models.fashion

Federal immigration law provides a specific type of visa for workers in “specialty occupations” or “fashion models.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). A specialty occupation job that qualifies for an H-1B visa must require an advanced degree and the specialized knowledge or skills that come with such a degree in order to perform the work. The total number of new H-1B visas available each fiscal year is capped at 65,000. Id. at § 1184(g)(1)(A). Immigration officials receive a substantially higher number of H-1B petitions every year.

The H-1B fashion model visa, also known as the H-1B3 visa, is available to individuals of “distinguished merit and ability in the field of fashion modeling,” who want to come to the U.S. “to perform services which require a fashion model of prominence.” 8 C.F.R. § 214.2(h)(4)(i)(C). Federal immigration regulations define “prominence” in fashion modeling in a rather circular manner, as being “renowned, leading, or well-known in the field of fashion modeling.” Id. at § 214.2(h)(4)(ii). A model or their employer may establish their “prominence” in the field with documentation of their past work and with affidavits from people with knowledge of the industry. Id. at § 214.2(h)(4)(vii). They must also provide a labor certification from the U.S. Department of Labor. 8 U.S.C. § 1182(n)(1).

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Hoboken NJAn administrative law judge (ALJ) at the U.S. Department of Labor (DOL) recently reversed a ruling finding an employer liable for wage violations affecting workers with H-1B visas. Administrator v. Volt Management Corp., No. 2012-LCA-00044, order (DOL, Jun. 16, 2016). The DOL’s Wage and Hour Division (WHD) had initiated an investigation of the respondent after receiving a grievance from an H-1B worker. The investigation grew to include 80 H-1B employees and resulted in a finding that the respondent had underpaid them by hundreds of thousands of dollars. The ALJ found that the WHD exceeded its authority by expanding its investigation. It reversed the entire ruling and penalty, except for the award of damages to the individual complainant.

A limited number of H-1B temporary worker visas are available each fiscal year for workers in “specialty occupations,” which typically require an advanced degree or specialized training. 8 U.S.C. § 1101(a)(15)(H)(i)(b). In order to obtain an H-1B visa for a prospective employee, the employer must petition U.S. Citizenship and Immigration Services (USCIS) and file a labor certification application (LCA) with the DOL. The LCA must attest that the worker will receive comparable wages to others in similar positions and that hiring a nonimmigrant worker will not adversely affect working conditions for U.S. citizens and lawful permanent residents. Id. at § 1182(n)(1). If the DOL approves the LCA, it issues a labor certification to the employer, which forms part of the petition to USCIS.

Federal immigration law gives the DOL authority to investigate employers for violations of the conditions of their labor certifications under certain circumstances, including a grievance filed by an H-1B visa holder. Id. at § 1182(n)(2)(A). The DOL can initiate a random investigation against an employer within five years of the date the employer is found to have violated certain terms of its labor certification. Id. at § 1182(n)(2)(F). It can also initiate an investigation of an employer with H-1B workers if it “has reasonable cause to believe that” the employer has violated H-1B wage regulations. Id. at § 1182 (n)(2)(G)(i).

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