(Inter)National Basketball

Posted on by

 

NBA Noche Latina

The National Basketball Association (NBA) is paying homage to its Latin players and fans with its ninth annual Latin Nights program. The celebration is a league-wide event, best displayed by certain teams that change their jerseys into semi-Spanish. For example, Los Lakers, Los Spurs, Los Suns, El Heart, Los Bulls (though you wonder why they are not Los Toros and the Suns are not Los Soles). Special uniforms are made for the games in which those jerseys are used and they are popular sellers. The teams are specifically chosen for cities with large Spanish-speaking populations, such as Houston, San Antonio, Los Angeles, Washington DC, Miami, and Phoenix.

Cultivation of A Tradition

This is a tremendous tradition that the NBA has cultivated and a true acknowledgment to basketball’s global power and the NBA’s attraction to immigrant players. At the beginning of the 2014-2015 season, the league boasted a record 101 international players from 37 different countries. The NBA Champion San Antonio Spurs have nine international players by themselves and have embodied the spirit of teamwork that basketball promotes through their unselfish play. There were only 45 international players just fifteen years ago in 2000 and 21 in 1990.

Two reasons for the increase in international players is the fall of Communism in Eastern Europe and the success of the USA Men’s “Dream Team” in 1992 as American Ambassadors. Soccer may be the global game, but basketball is not far behind it, as the NBA is available to watch all over the world and international players have increased the attention that international fans pay to the game. Even in the United States, the fact that the NBA visibly celebrates its Latino fans with jerseys and some Spanish through special Latin Nights is a testament to the NBA’s loyal immigrant fan-base and Latin heritage.

H-1B Season News

Posted on by

Figure 2: Process of Obtaining an H-1B Visa

 

H-1B Decision Overturned in Favor of Applicant

It can be notoriously tricky to define what a “specialty occupation” is, and it is necessary to show that an occupation is a “specialty occupation” for the purposes of an H-1B visa. That is the predicate of an H-1B visa; an employer is seeking an employee in a specialty occupation, according to INA 101(a)(15)(H) and 8 CFR § 214.2(h)(4)(ii).

 

H-1B visa issues do not often reach the federal courts, so it is noteworthy when one does. It is punctuated by the unexpected result – courts give tremendous deference to agencies in interpreting their own rules. A strong body of case law supports that, so when a federal court overturns an agency’s interpretation, it is newsworthy. As the court wrote in its opinion, “While judicial review of agency decisions is highly deferential, it is not without teeth.”

 

In Raj and Company v. USCIS, an employer petitioned for a potential employee as a Market Research Analyst in 2012. The potential employee had a Bachelor’s Degree from a United States college. The H-1B visa requires a college degree equivalent to the US college degree USCIS requested more information to demonstrate that the position corresponded with a specialty occupation. There are four criteria used in determining whether an occupation is “specialty.” The employer responded with an abundance of documents to argue the point of specialty occupation, but USCIS responded with a denial. The appeal was taken to the Western District Federal Court of Washington. The court determined that the employer and beneficiary of the proposed H-1B were correct; a Bachelors’ degree is required to perform the position of “Market Research Analyst.” The federal court overturned USCIS’ denial.

 

 H-4 Work Authorization

Another piece of important news for H-1B visa holders and their dependent spouses (H-4) was released this week. USCIS announced that effective May 26, 2015, certain H-4 visa holders will be able to obtain work authorization (regulations). They can concurrently file I-765 (Work Authorization) applications with their I-539 (Change or Extension of Status) applications. Their H-1B principals must have an approved I-140 (Employment-Based Green Card application) or have an H-1B extension subject to AC-21. An AC-21 extension means that someone is in H-1B status beyond the normally allowed six years (two three-year terms). H-1B holders sometimes end up being in H-1B status for upward of 16 years – two three-year terms of H-1B plus ten years of extended H-1B while waiting for the permanent residence date to become current. Long waiting periods are endemic with some EB-2 and EB-3 Green Card applications. The limited work authorization for H-4 visa holders is a smart move by DHS, recognizing that families of H-1B visa holders are economically injured in their years of waiting and sometimes have to abandon their Green Cards as a result. Please note this does not apply for H-4 minor children.

H-4 Work Authorization

Posted on by

USCIS announced a new rule today, February 24, 2015, allowing H-4 visa holders in certain situations to obtain work authorization. Work authorization would not change their H-4 dependent status on an H-1B principal. Successful applicants can apply for an employment authorization card on May 26, 2015. Please note that employment authorization applications can often take three months.

 

Work authorization is permitted for H-4 visa holders who have an H-1B principal with a pending I-140 (employment-based application) or with an approved I-140 under AC21. AC21 104(c) and 106(a) allow for H-1B visa holders to extend their status with a pending or approved I-140 application for permanent residence. Individuals from countries such as India, China, and the Philippines have excruciatingly long waits for their priority date, even when they are approved for their Green Cards through EB-2 or EB-3 categories. During those waits, H-4 visa holders will be able to work.

 

This will bring much relief to H-4 visa holders and should help local economies benefit from talented individuals who can now contribute. This proposal was announced with the series of Executive Actions from November 20, 2015 that primarily focused on deferred action for parents of Americans and expanded DACA. However, there are also executive orders that have more support, such as allowing certain H-4 visa holders to obtain work authorization and employment.

 

November 2014 was not the first mention of permitting H-4 work authorization. Over the summer of 2014, a Notice and Comment period generated enormous support for the proposal, with H-4 and H-1B visa holders voicing their espousal of such a rule. Opposition was minor and consisted of fear that H-4 visa holders would be discriminated against and forced into menial labor positions.

 

The Law Offices of Andrew Wood applauds USCIS for announcing this rule and looks forward to assisting H-4 visa holders obtain employment authorization. If you would like to learn more about how we can assist you, please drop us a line.

Emergency Stay Filed by DOJ

Posted on by

The Department of Justice filed an emergency stay today in the Obama administration’s quest to restart the DAPA (Deferred Action for Parents of Americans) and expanded DACA (Deferred Action for Childhood Arrivals) programs that were enjoined last week. Judge Harlam of a federal court in Texas issued an injunction last week, shutting down the two programs before they could accept applications. Guidelines were issued for both DAPA and DACA. DACA was set to begin on February 18 and DAPA was tentatively scheduled for May.

 

Deferred action is a type of prosecutorial discretion that the executive branch exercises to allow migrants who lack immigrant or non-immigrant status to remain in the United States. Neither of the deferred actions would grant actual status. They would allow qualifying applicants to acquire an employment authorization card, so that they could work legally, along with a three-year grant to stay in the United States without the threat of removal or deportation. The criteria for the programs can be found here and here.

 

The overriding policy of US immigration law is family reunification and the programs were designed with that mind. Immigration action has come in the form of executive action, a result of congressional inaction on passing immigration reform or the DREAM Act. The programs are supposed to be temporary measures while meaningful reform can occur through the legislative process.

 

26 states, led by Texas, petitioned to shut down the expanded DACA and DAPA programs, citing economic harm and executive overreach. The Department of Justice has announced its intention to appeal the federal decision.

 

Other aspects of the executive actions from November are unaffected. In addition, DACA as originally implemented on June 15, 2012 remains in effect for recipients and future applicants.

Judge Stops DAPA and New DACA

Posted on by

A federal judge in Texas temporarily stopped the expanded DACA and DAPA programs. Today, February 18, 2015, USCIS was supposed to begin accepting applications for expanded DACA (Deferred Action for Childhood Arrivals). DHS Secretary Jeh Johnson issued a press release acknowledging the decision to shut down the two programs temporarily before they even began accepting applications.

 

The lawsuit involved 26 states that argued the Obama Administration had exercised substantive and legislative powers that only belong to the legislative branch. Executive actions pertaining to immigration have been issued by every president since Eisenhower. The government noted that deferral actions have been taken since the 1960s in their brief. The judge agreed with the 26 states, finding unconstitutionality in his order. DHS vows that it will appeal the decision. The Office of Legal Counsel, which serves an advisory role for the executive branch, issued an opinion on November 19, 2014 (the day before the executive actions were announced by President Obama). The opinion advised that DAPA and an expanded DACA program would be legal and within the constitutional powers of the president.

 

The older version of DACA remains in effect and the recipients of DACA are not affected by this decision.

That first version of DACA was not at issue in the lawsuit, though it was tangentially mentioned and criticized. Seeing as over half of the states participated in bringing this lawsuit and the Obama Administration and DHS are planning to appeal, more court battles are expected over the separation of powers, adherence to the Administrative Procedure Act, and DAPA and DACA. The president issued his series of executive orders in November 2014 as a result of congressional inability to pass comprehensive or incremental immigration reform that has been clamored for years. The Senate passed immigration reform in 2013, providing a pathway to citizenship, but that bill did not become law because the House voted against it.