Articles Posted in Employment

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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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FirmBee [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayImmigration is a critical component of the American economy, with employers constantly petitioning to bring employees here from abroad for particular jobs. This is especially true, for a variety of reasons, in the STEM fields (Science, Technology, Engineering, and Mathematics). Several studies released in the past few months demonstrate the extent of immigrant involvement in the economy, particularly in business startups. Immigrant founders now account for more than one-fourth of all new startups, as well as over half of startups valued at $1 billion or more. Immigrants also make up a significant portion of New Jersey entrepreneurs. Several methods of immigration are available for aspiring U.S. entrepreneurs.

The type of visa most commonly associated with the high-tech field is the H-1B visa. This is a nonimmigrant visa, meaning that it is officially only available to people who do not intend to remain in the U.S. permanently. An employer must petition for the visa on behalf of an employee. Federal law caps the total annual number of visas at 65,000, plus another 20,000 for people with advanced degrees. U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for fiscal year 2016 on April 1, 2015, and it reported that the number of petitions received exceeded the annual cap six days later. For a total of 85,000 available visas, the agency reported receiving almost 233,000 petitions.

The H-1B visa is valid for three years, and it may be extended for another three years. Various provisions allow an H-1B visa holder to change jobs, or to extend their stay if they are working toward seeking permanent residence, but the overall purpose of the visa is a temporary stay. It is therefore far from ideal for someone who wants to start a new business. Employment-based (EB) immigrant visas allow a person to come to the U.S. for a job with the intention of adjusting status to that of a permanent resident. EB immigration also requires a petition filed by an employer, and it is subject to annual numerical limits. Unlike H-1B visas, however, they are far less subject to backlogs.

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ClkerFreeVectorImages [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe legal issues surrounding the employment of immigrants can be complicated, both for immigrants looking for work and for employers looking to hire people. The Immigration and Nationality Act (INA) prohibits discrimination in employment based on citizenship or national origin, with the exception of people who are not legally authorized to work in the U.S. 8 U.S.C. § 1324b(a). The Department of Justice (DOJ) enforces INA provisions dealing with discrimination and other unlawful employment practices through the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). In December 2015, an opinion letter from the OSC addressed a question regarding discriminatory practices that favor workers with nonimmigrant visas over U.S. citizen workers, and whether the INA distinguishes between employers and third-party contractors in this context.

Employers with four or more employees are covered by the INA’s prohibition on citizenship and national origin discrimination. This generally means that an employer cannot make a decision related to employment, such as whether to hire someone, lay someone off, or promote someone, based solely on whether or not they are a citizen or have a particular lawful immigration status. The INA’s anti-discrimination provisions are more limited in scope, however, than many other anti-discrimination laws.

With regard to national origin discrimination, the INA expressly states that it does not overlap with the prohibition on national origin discrimination found in the primary federal anti-discrimination statute, Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2(a), 8 U.S.C. § 1324b(a)(2)(B). The provisions dealing with citizenship status only apply to “protected individuals,” who are defined to include U.S. citizens, recent lawful permanent residents, refugees, and asylees. 8 U.S.C. § 1324b(a)(3). The INA also states that it is not unlawful discrimination for an employer to favor a U.S. citizen over an equally qualified non-citizen. 8 U.S.C. § 1324b(a)(4).

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By tanakawho from Tokyo, Japan (urban fragments in a raindrop) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsStudents who are present in the U.S. on an F-1 visa have limited work authorization, which includes jobs on campus and jobs within their field of study. In some cases, F-1 students may remain in the U.S. for a job after they have completed their studies. This program, known as “optional practical training” (OPT), has been the subject of litigation, based on allegations that the Department of Homeland Security (DHS) did not follow proper rulemaking procedures when it amended the OPT rules in 2008 to allow extensions for certain people with OPT jobs. A federal judge in Washington DC vacated the amended rule in August 2015 but stayed the order for six months. In January 2016, one month before the stay was set to expire, the judge granted DHS’ request for a three-month extension to allow DHS to complete the process of amending the OPT rules again.

An F-1 student is permitted to work on campus for up to 20 hours per week while school is in session, or full-time during breaks. 8 C.F.R. § 214.2(f)(9)(i). Off-campus work authorization is possible if an F-1 student can show “severe economic hardship” and a lack of on-campus opportunities. Id. at § 214.2(f)(9)(ii). DHS may also authorize an F-1 student, once they have completed one academic year, to work off campus for “practical training” purposes for up to 12 months. The period of training may be extended for an additional 12 months when the student advances to a higher level of education.

Internships and other types of work that are part of a specific curriculum are known as “curricular practical training” (CPT). 8 C.F.R. § 214.2(f)(10)(i). Other work that is “directly related to the student’s major area of study” may qualify as OPT. Id. at § 214.2(f)(10)(ii). An F-1 student may be employed in an OPT job while enrolled in school, and for up to 14 months after completing their studies.

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Joergelman [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayThe Department of Homeland Security (DHS), which oversees petitions for employment-based immigrant and nonimmigrant visas through U.S. Citizenship and Immigration Services (USCIS), has issued a notice of proposed rulemaking (NPRM) intended to clarify various aspects of the employment-based visa system. 80 Fed. Reg. 81899 (Dec. 31, 2015). The agency is currently accepting public comments through February 29, 2016, after which it may issue a revised NPRM or a final rule.

Among many other changes, the new rule would affect the first three preference categories of employment-based immigrant visas (EB-1, EB-2, and EB-3) and the H-1B specialty worker nonimmigrant visa program by amending the rules implementing the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), Pub. L. 106-313, 114 Stat. 1251. Congress enacted AC21 in part to facilitate immigrant and nonimmigrant visas for various highly skilled workers. The NPRM includes rule changes that, according to DHS, would better facilitate several goals established by these statutes.

The annual number of employment-based visas that may be issued to nationals of any one country is capped at seven percent of the total number of visas. 8 U.S.C. § 1152(a)(2). As a result, petitions for employment-based visas are backlogged for certain countries. According to the State Department’s Visa Bulletin for January 2016, all EB-1 visa petitions are current, but the priority dates currently under review for EB-2 beneficiaries from mainland China are from January 2013, and July 2009 for India. All EB-3 visa petitions are backlogged, with the longest wait being India’s priority date of July 2005.

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By Kalyan Kanuri (Godavari Bridges Uploaded by NotFromUtrecht) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsThe federal government offers a variety of temporary, or nonimmigrant, work visas that allow employers to hire an individual from abroad for a specific job, with the understanding that the person is expected to return to their country of origin once their visa expires. New York and New Jersey businesses should be aware of some of the different types of temporary work visas in order to determine which would work best for them.

Visa Petition Procedures

For any type of work visa, the employer must petition U.S. Citizenship and Immigration Services (USCIS) on behalf of the worker. The employer is therefore the “petitioner” in this process, and the worker is the “beneficiary.” Temporary work visas are valid for anywhere from several months to multiple years, depending on the type of visa and the number of extensions granted.

Labor Certification

The petition process for some work visas require a certification from the Department of Labor regarding the worker and the specific job that the employer is offering. This labor certification must attest that no workers in the U.S. are reasonably available and that the employment of this worker will not have a significantly negative effect on the wages or working conditions of U.S. workers.

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linux-154544_640.pngU.S. Citizenship and Immigration Services (USCIS) issued a final rule in February 2015 extending employment authorization to dependent spouses of certain people who are in the U.S. on H-1B work visas. These dependent spouses are able to come to the U.S. with an H-4 nonimmigrant visa, but are excluded from employment. Completing this rule is part of President Obama’s immigration executive actions, which he announced in November 2014, with the goal of reducing financial burdens on guest workers and their families who are on a track to legal U.S. residence.

Federal immigration law provides H-1B nonimmigrant visas for workers in “speciality occupations” and fashion models. 8 U.S.C. § 1101(a)(15)(H)(i)(B). Spouses and dependent children of H-1B visa holders are permitted to come to the U.S. with an H-4 visa, which has the same duration as the H-1B visa. 8 C.F.R. § 214.2(h)(9)(iv). Prior to the new final rule from USCIS, they were not permitted to work unless they obtained their own nonimmigrant visa that included work authorization. This resulted in H-1B workers who brought their spouses and children to the U.S. being limited to one income.

The immigration executive action announced by the White House in November includes directives to USCIS and other agencies to “modernize, improve and clarify immigrant and nonimmigrant programs,” with the goal of “grow[ing] our economy and creat[ing] jobs.” One of the directives, according to a summary provided by USCIS, is to issue a final rule extending work authorization to H-4 visa holders whose H-1B visa holder spouses “are on the path to lawful permanent resident status.”
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Ellis_Island_photo_D_Ramey_Logan.jpgThe E-Verify system, which assists employers in verifying employees’ work eligibility, is now in use by hundreds of thousands of employers around the country. Federal immigration law requires employers to verify that employees and new hires are U.S. citizens or legal permanent residents, or that they have work authorization from the government. State and local governments may establish their own policies regarding the use of E-Verify. New York and New Jersey have no statewide laws regarding the system, but some states require state agencies, government contractors, and even private employers to use E-Verify.

U.S. citizens and permanent residents have work authorization by definition. People with certain nonimmigrant visas, such as H-1B or L-1, and people in programs like Deferred Action for Childhood Arrivals (DACA) may obtain a work authorization card from U.S. Citizenship and Immigration Services (USCIS). Employees must submit Form I-9 to their employers, along with specific documents to establish their identity and work authorization. Employers may be subject to civil or criminal penalties for employing unauthorized workers.

E-Verify, an online system that originally launched in 1997, is supposed to assist employers by allowing them to check an employee’s information against multiple government databases, rather than rely on their own visual inspection of the documents. USCIS touts the system’s “speed and accuracy” with regard to the information it provides, while critics have pointed to allegedly erroneous results.
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USA_Visa_-_Arg.jpgThe H-1B program is no stranger to controversy, but a recent report by NBC Bay Area and The Center for Investigative Reporting (CIR), based on a lengthy investigation, provides a comprehensive look at the problems faced by many specialty guest workers. India accounts for the greatest number of H-1B visa holders every year. Indian guest workers may be most susceptible to companies that allegedly violate various requirements of the H-1B program, withhold workers’ wages, and engage in other unlawful practices. The federal government has fought these practices in both civil and criminal cases, and workers have sought relief for violations of state and federal employment laws.

H-1B visas are available to workers in specialty occupations, meaning jobs that require a bachelor’s degree or higher in a specific field. Technology companies in Silicon Valley and elsewhere hire thousands of H-1B workers every year. Federal law caps the total annual number of new H-1B visas at 65,000, and the available slots fill within days. According to NBC Bay Area, about 64 percent of H-1B visas went to workers born in India in fiscal year 2012, six percent more than the previous fiscal year.

Companies described as “body shops” have been accused of violating the law by petitioning for H-1B visas on behalf of thousands of workers from countries like India. A worker must have an “employer-employee” relationship with the petitioner. The body shops allegedly falsely claim that a job is already waiting for the worker, when they actually operate as staffing consultants for the tech industry, providing H-1B workers on a contract basis.
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WhiteHouseSouthFacade.JPGPresident Obama announced a wide range of executive actions (EAs) on immigration in late November, including an expansion of the Deferred Action for Childhood Arrivals (DACA) program, deferrals for family members of citizens and lawful permanent residents (LPRs), and potential eligibility for certain public benefits. The EAs do not substantively alter federal immigration law by, for example, creating new immigrant categories or giving undocumented immigrants a new means of obtaining lawful status, but they do grant millions of people a reprieve from the threat of deportation and the opportunity to work.

The President announced the EAs on November 20, 2014, after a long period of inaction by Congress. The U.S. Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, in a bipartisan vote on June 27, 2013. The bill would create new opportunities for lawful immigration status while enhancing immigration and border enforcement. It would crack down on abuses in the H-1B visa system and provide additional visas for students in science, technology, engineering, and mathematics (STEM) fields at U.S. colleges and universities. The bill never has even been introduced in the House of Representatives.

The EAs will expand eligibility for DACA, the program that allows undocumented immigrants who entered the U.S. as children and meet other criteria, about 90 days after the announcement date. The upper age limit, currently set at people born on or after June 15, 1981, will be removed, and the continuous presence requirement will be moved up from June 15, 2007 to January 1, 2010. The program still will not be available to anyone who entered the U.S. after that date.
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