Articles Posted in Non-immigrant Visas

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Residency PaperworkThe future of the H-1B specialty worker visa program has been uncertain since the new presidential administration took over in January 2017. The White House formally addressed the program for the first time in an executive order (EO) issued in April. EO 13788 of April 18, 2017, 82 Fed. Reg. 18837 (Apr. 21, 2017). The EO, entitled “Buy American and Hire American,” directs the federal government to purchase products manufactured in the United States and to hire American workers whenever possible. It also directs certain cabinet departments to review immigration regulations, including the H-1B program, and possibly to revise its rules and guidance in order “to protect the interests of United States workers in the administration of our immigration system.” EO 13788 § 5(a), 82 Fed. Reg. 18838. It provides no specific guidelines with regard to the H-1B program, although the language of the EO suggests that the administration does not intend to eliminate the program entirely, as some have feared.

H-1B visas are available to workers in “specialty occupations.” 8 U.S.C. § 1101(a)(15)(H)(i)(b). This refers to an occupation that requires the “theoretical and practical application of a body of highly specialized knowledge,” as well as at least a bachelor’s degree or the equivalent in the relevant field of study. Id. at § 1184(i)(1). Additionally, the intended visa holder must have any and all required licensure for the job, if any, and must have either received the academic degree mentioned earlier or obtained enough on-the-job experience to equal the work required for a degree. Id. at § 1184(i)(2).

Both the employer and the prospective visa holder must meet eligibility criteria before the government will issue an H-1B visa. The employer must obtain a labor certification from the U.S. Department of Labor (DOL). Id. at § 1182(n)(1). This requires certifying to the DOL that the employer will pay a wage to the H-1B worker that is comparable to what it would pay to an American worker and provide the same general working conditions. The goal here is to prevent employers from driving down wages and other conditions of employment. The employer must also certify that the H-1B worker will not immediately “displace a United States worker.” Id. at § 1182(n)(1)(E).

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visaThe Immigration and Nationality Act (INA) gives multiple federal agencies under several Cabinet departments jurisdiction over different—sometimes overlapping—processes. U.S. Citizenship and Immigration Services (USCIS), which is part of the Department of Homeland Security (DHS), handles most visa petitions and applications for adjustment of status. The courts that hear removal cases and other matters are part of the Executive Office of Immigration Review (EOIR), which is part of the Department of Justice. The Board of Immigration Appeals (BIA), also part of EOIR, recently resolved a dispute over whether an immigration judge (IJ) could adjudicate a request for a waiver of inadmissibility by a U visa petitioner, when the petitioner was already in the IJ’s court for another matter. Matter of Khan, 26 I&N Dec. 797 (BIA 2016). The BIA held that USCIS has exclusive jurisdiction to decide whether to grant waivers of inadmissibility.

A prospective immigrant who wishes to come to the U.S. must establish that they do not fall under any of the categories of inadmissibility set forth by the INA. These include criminal convictions, national security issues, and health-related factors. See 8 U.S.C. § 1182(a). USCIS has discretionary authority, however, to admit many otherwise inadmissible people on a temporary nonimmigrant basis. Id. at § 1182(d)(3)(A)(ii). This is known as a waiver of inadmissibility.

The INA creates numerous categories of nonimmigrant visas for people who intend to come to the U.S. for a limited period of time before returning home. These include tourist and business visitor visas, student visas, and various types of work visas. The respondent in Khan was seeking a U visa, which is available to crime victims who are actively assisting law enforcement in an investigation or prosecution. 8 U.S.C. §§ 1101(a)(15)(U), 1184(p). The total number of U visas that may be issued each fiscal year is capped at 10,000, not counting spouses and parents of the principal beneficiaries. A U visa is valid for up to four years and can be extended under some circumstances.

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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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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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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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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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Izzedine (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsIn order for an individual who is not a citizen or lawful permanent resident of the United States to enter this country, they must possess a valid immigrant or nonimmigrant visa. The Immigration and Nationality Act (INA) allows people from certain countries, however, to enter the U.S. for a limited time, and for limited purposes, under the Visa Waiver Program (VWP). Anyone wanting to enter the U.S. under the VWP must be otherwise admissible, and the government may still deny them entry for various reasons. The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, which was originally a separate bill but was then added to an appropriations bill, took effect in January 2016. Pub. L. 114-113, Div. O, § 201 et seq. The new law restricts people from entering the country through the VWP if they have recently visited certain other countries, purportedly based on national security concerns.

Under the VWP, nationals of specified countries are exempt from the usual requirement of a nonimmigrant visa or other document authorizing entry into the U.S., provided they are seeking admission as a tourist for no more than 90 days. 8 U.S.C. §§ 1187, 1182(a)(7)(B)(i)(II). The federal government designates specific countries for the VWP, usually based on a reciprocity agreement under which U.S. nationals can enter that country without a visa. According to the U.S. Department of State, 38 countries currently participate in the VWP. Most of these countries are in Europe. The list also includes one South American country (Chile); five Asian countries (Brunei, Japan, Singapore, South Korea, and Taiwan); and two countries in Oceania (Australia and New Zealand).

The new bill, which became law in December 2015 and took effect a month later, makes several modifications to the VWP. It amends the passport requirements to allow both machine-readable and electronic passports, effective April 1, 2016. It also requires VWP countries that issue electronic passports to certify that they have adequate means to validate these passports by October 1. The most notable features of the new law, however, deal with national security issues.

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