Category Archives: Industry News

Immigration in Courts

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Immigration Litigation – Employment Authorization in the Courts

 

H4 Work Authorization Complaint Dismissed

The United States District Court for the District of Columba this week ruled against a group seeking a preliminary injunction against the Department of Homeland Security’s Employment Authorization program for certain H-4 dependent spouses. H-4 spouses have H-1B principal visa holders who are employed in a specialty occupation. Until this past Tuesday, all H-4 spouses were barred from employment. A limited class of H-4 visa holders can apply for work authorization: 1) if they have an approved I-140 petition and are waiting for their date to become current or 2) they are in a period of extended H-1B stay as a result of 106(a) and (b) of AC21 (American Competitiveness in the 21st Century Act).

The District Court denied the preliminary injunction because the group failed to show “irreparable harm.” In order to succeed, the group had to show their employment was directly threatened by the availability of these nonimmigrants, who were previously barred from employment. The group is composed of IT workers, so they had to show that their employment in the IT field would be threatened. The court determined that their claim was speculative and purported injuries did not merit relief.

USCIS is adjudicating employment authorization for those certain H-4 dependents who apply.

 

Faster Employment Authorization Decisions

On the topic of employment authorization, a class action lawsuit has been filed against USCIS (May 22). The Northwest Immigrant Rights Project is seeking declaratory and injunctive relief because there have been delays in adjudicating applications for employment authorization. By law, USCIS is required to render decisions within 30 days for certain employment authorization applications and 90 days for others. The complaint demands that USCIS render their decisions within those timeframes.

Employment authorization is important for nonresidents of various statuses. Some visas are employment-based and some prohibit employment. There is often a “limbo” period for some people in changing their status and employment authorization is crucial for having legal employment.

H-4 Work Authorization and More

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Limited H-4 Work Authorization Begins Today

USCIS begins accepting limited H-4 dependent employment authorization application today. This announcement was made three months ago and the Notice and Comment process occurred last summer. USCIS is altering its priorities to ensure that these applications are adjudicated in a timely fashion.

This is not work authorization for all H-4 dependents of H-1B visa holders. H-4 dependent children are forbidden from employment. The majority of H-4 dependents are not allowed to apply for employment authorization. It is limited to those H-4 dependent spouses whose H-1B principals have an approved I-140 petition or have H-1B status through AC21 106(a) and (b) status (American Competitiveness in the 21st Century Act, which allows for an H-1B visa holder to extend the six year limit of H-1B status with a pending I-140 application). The H-1B visa is a dual intent nonimmigrant visa. Although it is a nonimmigrant visa, a holder does not need to have nonimmigrant intent. An employer can file an I-140 application for Permanent Residence. There are 140,000 immigrant visas available each year through the employment-based path.

In other employment immigration news, employment-based visa modernization has been added to the regulatory agenda. The rudiments at the moment indicate that, “DHS proposes to allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.” Please be aware that this does not mean rulemaking is imminent.

DACA In State College Tuition

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A judge in Maricopa County Arizona ruled on May 5 that immigrants granted deferred deportation status are eligible for in-state college tuition. This is a state court decision that will save thousands of dollars for DREAMers attending Maricopa County Community Colleges. Arizona is often the arena for contentious immigration litigation and legislation. Maricopa County is also the home of famed anti-immigration  Sheriff Joe Arapaio. This ruling could set a precedent for other schools and other states to level in-state tuition for their students with deferred action.

The basis of Superior Court Judge Arthur Anderson’s decision is that federal law determines who is lawfully present in the United States. Arizona has a voter-enacted law, Proposition 300, which demands that individuals seeking a federal, state, or local public benefit must submit specific documentation to prove lawful presence in the United States. There are also prohibitions from Arizona’s controversial SB1070 law, which was largely but not entirety stricken down by the United States Supreme Court.

The DREAMers have been clamoring for comprehensive immigration reform that will grant them a pathway to citizenship, as long as they meet certain requirements. Their argument is that they were brought to the United States as young children and have grown up knowing themselves to be Americans. Many DREAMers are unaware of their status until they start applying for colleges and realize that they do not qualify for scholarships and federal benefits because of their status.

Deferred action is not immigration status that grants green cards or a path to citizenship. It is a temporary allowance of authorized stay without many benefits. Individuals can obtain work authorization. Deferred Action for Childhood Arrivals (DACA) was announced on June 15, 2012 and is available for periods of two years. Expanded DACA and Deferred Action for Parents of Americans (DAPA) are being challenged by 26 states in Texas v. United States. The case is currently awaiting a decision in the Fifth Circuit after a federal judge in Texas blocked implementation of the programs because they were announced without following the Administrative Procedural Act’s Notice-and-Comment.

L-1B Visa News

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L-1B Visa Denials

 

The National Foundation of American Policy reported last week that the denial rate for L-1B petitions has reached a historic high of 35% for Fiscal Year 2014. This is an increase from 30% in FY 2012 and 34% in Fiscal Year 2013. While those numbers seem consistent, 35% is a stark contrast from the 6% denial rate from FY 2006.

 

The L-1B visa is an opportunity for multinational companies to transfer high-skilled employees from their overseas locations to the United States. There are certain requirements that must be met. The employee (1) must have been employed for a qualifying organization abroad for one continuous year in the past three years and (2) be seeking to perform a specialized knowledge position with the qualifying organization in the United States. The employer (1) must have the requisite relationship with the foreign company and (2) be engaged in or it must engage in business as a US employer with another country through the qualifying organization. The visa is an important tool for companies that are seeking US locations and would like to fortify their US operations with institutional knowledge.

 

The report contains some shocking statistics. 56% of employees transferring from India were denied between 2012-2014, more than four times the denial rate of 13% for employees from other countries in that time period. Nationals from other countries were also above that 13% rate, but Canadians only had a 4% denial. The increase in denials is especially consternating because there has not been a change in the L-1B regulations.

 

The White House announced that a guidance memo on L-1B visas will be released this week. L-1B guidance has been mentioned for years and was part of the executive actions announced in November. The guidance memo was released on March 24, 2015.

 

The Law Offices of Andrew Wood is committed to facilitating job-creating companies and employers who are growing the US economy. L-1 visas are an important aspect of that. In a global economy, we recognize that companies need employment visas to compete globally. Employment-based green cards are notoriously difficult, making non-immigrant visas the practical option. Given that L-1 and H-1B non-immigrant visas are the two practical means that companies have for retaining international nonimmigrant employees, guidance will be timely.

 

Mass Deportation Bill?

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Mass Deportation Measures?

While the DAPA and Expanded DACA programs are undergoing litigation between the Justice Department and federal court system, the House of Representatives is working on removal legislation. The Michael Davis, Jr., and Danny Oliver in Honor of State and Local Law Enforcement Act would be the most severe form of immigration enforcement Congress has passed recently (if it did pass). The proposed legislation contains four parts:

  • Being in the United States without authorization is a civil offense. The bill seeks to make unauthorized presence a crime.
  • It would grant state and local law enforcement the power to enforce immigration law. Immigration law is firmly settled as federal law and non federal law enforcement would be enabled to detain anyone with probable cause of being present in the country without authorization.
  • Any immigrant apprehended by local law enforcement would be taken to federal custody for deportation. The federal government currently has discretion in that choice.
  • The bill would alter the priority system created by the November 20, 2014 executive action memos and announcement and make deportation nearly mandatory.

The point is to reduce chances of prosecutorial discretion and deferred action, means for unauthorized immigrants to remain in the country. HR 1148 would overturn the Supreme Court’s decision in Arizona v. U.S., which affirmed that states and localities should not be enacting and enforcing their own immigration laws. The House attempted to criminalize unlawful presence in 2005, but that measure did not succeed after massive nonviolent protests throughout the country.

The American Immigrant Lawyers Association has strongly condemned the bill, which is a second attempt of the previously failed “SAFE Act” from 2005. Aside from harmful to American families, businesses, and the economy, it is “fundamentally inconsistent with the principles of due process and fairness grounded in the Constitution.”