Articles Posted in Employment

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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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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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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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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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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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