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Archive for the ‘Hot Questions’ Category
Wednesday, July 28th, 2010
On July 28, 2010, United States District Judge Susan Bolton issued a preliminary injunction that prevents Arizona from enforcing portions of its now infamous legislation, S.B. 1070. While the injunction does not prohibit enforcement of all sections of the law, the injunction does prohibit enforcement of the most controversial sections.
As Klasko previously reported, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity. The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration. The law makes the failure to carry immigration documents a crime and it gives the police power to detain anyone suspected of being in the country illegally.
In her opinion granting the preliminary injunction, Judge Bolton stated that the United States is likely to succeed on the merits that several sections of S.B. 1070 are preempted by federal law. Specifically, Judge Bolton enjoined Arizona from enforcing Section 2(B) of S.B. 1070, which requires that “an officer make a reasonable attempt to determine the immigration status of a person stopped, detained or arrested if there is a reasonable suspicion that the person is unlawfully present in the United States, and requiring verification of the immigration status of any person arrested prior to releasing that person.” This section of the law has been heavily criticized that it allows Arizona law enforcement to engage in racial profiling.
Judge Bolton also enjoined Section 3, which makes it a crime for “the failure to apply for or carry alien registration papers,” and Section 5, which makes it a crime “for an unauthorized alien to solicit, apply for, or perform work.” Finally, Judge Bolton enjoined Section 6, which authorizes “the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes the person removable from the United States.” Judge Bolton further explained that “the United States is likely to suffer irreparable harm if the Court does not preliminarily enjoin enforcement of these Sections of S.B. 1070 and that the balance of equities tips in the United States’ favor considering the public interest.”
Now that the Court has decided on the motion for preliminary injunction, the lawsuit will proceed to a hearing on the merits of the case, and Judge Bolton will decide whether Arizona’s law as a whole is preempted by federal law. While the case proceeds, Arizona is stopped from enforcing the above provisions by Judge Bolton’s preliminary injunction.
Posted in Agency Updates, Hot Questions, News & Politics | Click Here To Comment »
Monday, July 12th, 2010
Employers are often caught between the requirement to accept a valid documentation evidencing identity and employment authorization, on the one hand, and the need to administer a corporate immigration policy on the other.
One tool for administering a corporate immigration policy is to request that applicants confirm, early in the screening process, whether they will require immigration sponsorship. Because applicants who are US citizens, permanent residents, asylees, refugees, and temporary residents under the 1986 amnesty law are protected from citizenship status discrimination, some employers believe that any pre-hire inquiry into immigration status is prohibited, even where the job applicant does not fall into one of those categories.
In an exchange of correspondence posted to his blog, attorney Angelo Papparelli recently received guidance from the Office of Special Counsel at the Justice Department, which is responsible for enforcing the anti-discrimination provisions. He requested guidance from OSC about how an employer could determine whether job applicants presenting employment authorization documents were only authorized to work because of a pending application for adjustment of status. Such job applicants will only be able to continue their employment authorization if their application for permanent residence continues, and may need to present evidence to USCIS of their change in job.
OSC clarified that because temporary visa holders and applicants for adjustment of status to permanent residence are not protected from citizenship status discrimination, “an employment decision made exclusively on the basis of an individual’s status as a temporary visa holder or as an applicant for adjustment of status to permanent residence would not run afoul of the anti-discrimination provision.” Employers can, therefore, feel free to make decisions about whether or not to hire an applicant who is a temporary visa holder or an applicant for adjustment of status in accordance with their corporate immigration policy.
OSC also provided guidance on the kinds of inquiry an employer wishing to discover information about an applicant’s immigration status may ask prior to making a hiring decision. OSC approved use of a somewhat complicated question, albeit one which makes clear what information the employer is requesting about an employee’s need for future visa sponsorship. OSC approved the following two questions for inclusion on job applications, so long as they are asked of all job applicants:
1. Are you legally authorized to work in the United States? _____ Yes _____ No
For purposes of the following question “sponsorship for an immigration-related employment benefit” means “an H-1B visa petition, an O-1 visa petition, an E-3 visa petition, TN status and ‘job flexibility benefits’ (also known as I-140 portability or adjustment of status portability) for long-delayed adjustment of status applications that have been pending for 180 days or longer.” (Please ask us if you are uncertain whether you may need immigration sponsorship or desire clarification.)
2. Will you now or in the future require “sponsorship for an immigration-related employment benefit?” _____ Yes _____ No
This guidance is particularly helpful for employers conducting job searches for technically trained personnel, many of whom may have initiated the permanent residence process with other employers. If you need further guidance on particular situations, please feel free to contact your Klasko, Rulon, Stock & Seltzer, LLP attorney.
Tags: anti-discrimination, discrimination, DOJ Office of Special Counsel, I-9 Compliance
Posted in Agency Updates, Hot Questions, Worksite Enforcement | Click Here To Comment »
Thursday, July 8th, 2010
On July 6, 2010, the U.S. Department of Justice (DOJ) filed suit in the United States District Court for the District of Arizona against the State of Arizona and Governor Janice Brewer in her official capacity. The lawsuit claims that Arizona’s state immigration law, S.B. 1070, unconstitutionally interferes with the federal government’s ability to regulate immigration. In its press release about the suit, the DOJ has stated that “a patchwork of state and local policies would seriously disrupt federal immigration enforcement. Having enacted its own immigration policy that conflicts with federal immigration law, Arizona ‘crossed a constitutional line.’” The suit was filed on behalf of the DOJ, the Department of Homeland Security (DHS), and the Department of State (DOS), which share responsibility over the nation’s immigration laws.
Arizona’s S.B. 1070 has caused significant controversy since being enacted on April 23, 2010. The law makes the failure to carry immigration documents a crime. It also gives the police power to detain anyone suspected of being in the country illegally. The law has received criticism that it gives police the power to engage in racial profiling, particularly against the many Hispanics residing in Arizona. In fact, S.B. 1070 was immediately criticized by the Obama administration in April, and this suit marks yet another step in the federal government’s fight against the patchwork of state-enacted immigration laws popping up around the country.
Leading up to the suit, the DOJ consulted with Arizona officials, law enforcement officers and groups, and civil rights advocates to gain a full picture of how the law is affecting both citizens and aliens alike in Arizona. In fact, the law suit is supported by Arizona law enforcement officials, including the Chiefs of Police of Phoenix and Tucson, who filed declarations with the lawsuit stating that S.B. 1070 will hamper their ability to effectively police their communities. The DOJ has stated that “Arizona impermissibly seeks to regulate immigration by creating an Arizona-specific immigration policy that is expressly designed to rival or supplant that of the federal government. As such, Arizona’s immigration policy exceeds a state’s role with respect to aliens, interferes with the federal government’s balanced administration of the immigration laws, and critically undermines U.S. foreign policy objectives.”
The DOJ has asked for a preliminary injunction to stop enforcement of the suit based upon irreparable harm caused by the law’s operation. The case has been assigned to Federal Judge Susan Bolton. Judge Bolton has scheduled a preliminary hearing on the injunction for July 22, 2010. No doubt the outcome of this case will affect other states contemplating passing similar immigration-related state legislation.
Tags: Immigration News
Posted in Agency Updates, Hot Questions, News & Politics | 1 Comment »
Monday, June 14th, 2010
Last week, an application for Preliminary Injunction and a Complaint (Broadgate, Inc., et al v. USCIS, et al) were filed in the U.S. District Court of the District of Columbia, challenging the USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships.
As Klasko Law previously reported, the H-1B guidance issued by USCIS earlier this year reinterpreted the H-1B program to place added emphasis on the relationship between the employee and employer as a basis for eligibility for the visa classification. The memorandum asserted that it would no long recognize employees hired by staffing agencies and assigned to work at third party worksites because the USCIS no longer considered such arrangements did not constitute a valid employer-employee relationship. Almost immediately after issuance of the memorandum, employers who had previously had no issues in obtaining H-1B status for their employees across a variety of industries that include healthcare, information technology, education, engineering and manufacturing reported receiving extensive requests for evidence and denials of petitions.
The Compliant claims that the USCIS violated mandatory rule marking procedures under the Administrative Procedures Act (APA), which requires that the agency conduct an analysis of the impact of the new rule on small business and entities per the Regulatory Flexibility Act. Moreover, the compliant asserts that the USCIS failed to follow proper rule making procedures by seeking to legislate through memorandum. Federal regulations require that agencies amend rules through posting in the Federal Register and allowing for notice and comment from the public. Finally, the complaint alleges that the rule is arbitrary and capricious because it targets a specific business model that has been regularly recognized under immigration law without good cause or public hearing.
Klasko Law will continue to provide our clients with updates regarding the status of the Neufeld memorandum.
Tags: H-1Bs, Neufeld Memorandum, Staffing Companies
Posted in Hot Questions, Temporary Visas | Click Here To Comment »
Monday, June 7th, 2010
Science education and research is a global endeavor. The recently released NSF Survey of Earned Doctorates reported that 33% of the 41,000 PhDs awarded in science and engineering in the U.S. in 2008 went to non-U.S. citizen visa holders. What is more, these highly skilled and trained scientists are not leaving, with a separate study by the Oak Ridge Institute for Science and Education (ORISE) finding that 62% of foreigners who came to the U.S. for their doctorates were still working here five years later. The implication then is that a large part of the scientific workforce in the U.S. consists of and relies upon foreign talent.
These statistics supporting the role of the U.S. in the globalization of academic science belie a common impediment that foreign scientists face: a challenging visa process that has seen a recent resurgence in delays for students and a low cap on permanent-resident visas for those aspiring to remain and work here. For international scientists, the immigration and visa process in the U.S. is a legitimate concern.
To help international science PhDs understand the intricacies involved in studying and working in the US, Science Alliance hosted the event “Navigating Immigration and Visa Issues: A Primer for Postdocs and Young Scientists” March 8, 2010, at the Academy. Leading the discussion were Suzanne Seltzer, Partner, and Kate Kalmykov, Associate, from Klasko, Rulon, Stock & Seltzer, LLP, a law firm that specializes in immigration and nationality law. In their talk, they stepped through the alphabet of visa options available to foreign scientists, from H-1Bs, O-1s and J-1 Waivers, and addressed factors for those wishing to establish permanent residence status.
Tune in to the E-Briefing to learn more.
Tags: Klasko Law, New York Academy of Sciences, Science Alliance, Young Scientists
Posted in Green Cards, Hot Questions, Temporary Visas | Click Here To Comment »
Wednesday, May 12th, 2010
The December 11, 2009 Neufeld Memorandum regarding material changes in business plans is misguided and legally deficient in a number of respects. The issue of material change has arisen in many contexts, including nonimmigrant petitions and immigrant petitions. If a change is not material, nothing must be filed. If a change is material, an amended petition must be filed.
The Neufeld Memorandum states that a “new petition”, rather than an “amended petition”, must be filed. The distinction is critical. If an amended petition must be filed, the investor keeps his conditional permanent resident status. If a new petition must be filed, the investor must abandon his conditional permanent resident status. USCIS states that the investor can then readjust status but must incur a new two year conditional residence period. This is contrary to law, since INA§245(c)(7) prohibits such an adjustment of status.
The impact of this distinction is a serious one for the investor. It is even more serious for family members. USCIS states that, if a conditional resident spouse has been divorced, or if a conditional resident child has turned 21, the spouse or child cannot gain the benefit of the new I-526 petition. Presumably, the spouse or child is subject to removal from the U.S. This is wrong both as a matter of policy and as a matter of law.
The Neufeld Memorandum relating to material change should be rescinded or challenged.
Tags: EB-5
Posted in Agency Updates, EB-5 Investor Visas, Hot Questions | Click Here To Comment »
Tuesday, May 11th, 2010
The Department of Justice’s (DOJ) Office of Special Counsel for Immigration-Related Unfair Employment Practices published best practices for employers and recruiters who post job ads on the internet. You can find the guidance on their website at: http://www.justice.gov/crt/osc/htm/best_practices.php.
The Civil Rights Division of the Department of Justice, created in 1957 by the enactment of the Civil Rights Act of 1957, works to uphold the civil and constitutional rights of all individuals, particularly some of the most vulnerable members of our society. The Division enforces federal statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial status and national origin.
The Civil Rights Division’s work addresses discrimination in education, employment, credit, housing, public accommodations, voting, state and local government programs, and certain federally funded and conducted programs. In addition, the Division prosecutes hate crimes, misconduct by public officials, human trafficking crimes, and criminal interference with those obtaining reproductive health services. The Division also coordinates enforcement efforts of federal agencies whose programs are covered by various civil rights laws, and it assists federal agencies in identifying and removing discriminatory provisions in their policies and programs.
Tags: Best Practices, DOJ, OSC
Posted in Agency Updates, Hot Questions | Click Here To Comment »
Wednesday, May 5th, 2010
Over on the firm’s main web site, we’ve added a new resource that explains the prevailing wage process and some of the most common questions that arise. The prevailing wage is used as a measure of the minimum allowable wage to be paid by employers seeking to employ a foreign national in certain nonimmigrant classifications (H-1B, H-2B, H-1B1, E-3), or sponsor a foreign national for permanent residence through the labor certification process (PERM).
Tags: H-1B, iCert, prevailing wage
Posted in Hot Questions, Temporary Visas | Click Here To Comment »
Tuesday, May 4th, 2010
Sens. John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the chairman and ranking member of the Senate Foreign Relations Committee, introduced legislation on February 24, 2010, to help immigrant entrepreneurs secure visas to the United States.
The “Start Up Visa Act of 2010″ would allow an immigrant entrepreneur to receive a two-year visa under a new EB-6 category, drawing from existing EB-5 visas, if he or she can show that a qualified U.S. investor is willing to dedicate a minimum of $250,000 to the immigrant’s startup venture. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the U.S., attracted $1 million in additional investment capital, or achieved $1 million in revenue, he or she would receive permanent resident status.
Sen. Kerry noted, “Everywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors.” Sen. Lugar said the U.S. “should channel the power of innovative thinkers from around the world and American investors towards creating jobs and encouraging economic growth and future prosperity.” More than 160 U.S. venture capitalists have endorsed the senators’ proposal.
Klasko Law will continue to provide our clients with updates on the status of the bill.
Tags: Proposed legislation
Posted in Hot Questions, News & Politics | Click Here To Comment »
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