Articles Posted in Business Immigration

Published on:

build-builder-carry-585419-300x200The U.S. Department of Labor (DOL) released a list of proposed changes to ETA Form-9035, also known as the Labor Condition Application for Nonimmigrant Workers (LCA), which could place added burdens on companies that hire and place migrant workers with H-1B visas (a program under the Immigration and Nationality Act.)

Under the current policies, petitioning employers are only required to note the addresses of end-user clients’ worksites they intend to place H-1B workers in. On the other hand, details such as the names of the clients associated with these worksites are unnecessary to the petition process.

The DOL’s proposed changes, however, expand the information requirements to include:

Published on:

apron-celebration-cute-763934-300x199Secretary Kirstjen Nielsen of the Department of Homeland Security (DHS) recently released a statement declaring the addition of 15,000 H-2B temporary visas to be issued to non-agricultural foreign workers for Fiscal Year 2018.

While 66,000 working visas have already been issued this year, Homeland Security has determined that thousands more are required to keep U.S. businesses that depend on an increased workforce afloat for FY2018. After consulting with members of the Congress and business owners, Nielsen admits that there are not enough qualified U.S. workers available to work in non-agricultural fields, justifying the move.

“The limitations on H-2B visas were originally meant to protect American workers, but when we enter a situation where the program unintentionally harms American businesses, it needs to be reformed,” Secretary Nielsen explains. “I call on Congress to pass much needed reforms of the program and to expressly set the number of H-2B visas in statute. We are once again in a situation where Congress has passed the buck and turned a decision over to DHS that would be better situated with Congress, who knows the needs of the program. As Secretary, I remain committed to protecting US workers and strengthening the integrity of our lawful immigration system and look forward to working with Congress to do so.”

Published on:

adult-auto-automobile-558375-300x200US Citizenship and Immigration Services (USCIS) and the Justice Department published a Memorandum of Understanding (MOU) last week to announce their joint effort to identify and eliminate fraud, abuse, and discrimination among employers that hire immigrant workers. Both agencies are set to make changes geared towards improving communication and cooperation in handling such cases.

The partnership expands on existing efforts to crack down on immigration-related labor abuses. At present, USCIS and the DOJ’s Civil Rights Division have the Protecting US Workers Initiative, which investigates and prosecutes employer discrimination and misuse of E-Verify. Both projects emerge from President Trump’s “Buy American, Hire American” anti-immigrant agenda.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against US workers by favoring foreign visa workers,” said Acting Assistant Attorney General John M. Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against US workers based on their citizenship status.”

Published on:

migration-3130767_1920The Justice Department recently reached a settlement with Themesoft Inc (Themesoft), a Texas-based technology consulting and staffing company.  After an extensive investigation of the company’s refusal to refer a work-authorized immigrant to a client, the company was found to have violated the Immigration and Nationality Act (INA). A former worker of Themesoft accused management of discriminating against him because of his citizen status as an asylum seeker.

According to the complaint, Themesoft refused to refer the asylum seeker’s application to one of their clients, citing his lack of a lawful permanent resident status, U.S. citizenship, and H-1B visa. The US government, however, grants asylum seekers work authorization, allowing them to find employment just as any lawful permanent resident and U.S. citizen is able to.

Themesoft was also found to have violated the INA’s anti-discrimination provision by demanding specific immigration documentation from the asylum seeker due to his immigration status. Under the provision, employers are strictly prohibited from requiring documents from immigrant workers pertaining to their citizenship, immigration statuses, or country of origin beyond those specified by law.

Published on:

immigrantsSpeaking to the press in Capitol Hill, White House Chief of Staff John Kelly announced that “DREAMers,” or beneficiaries of the Deferred Action for Child Arrivals (DACA), would not be a priority for immigration even if Congress fails to come up with a legislative replacement to the program before its March 5 termination date.

DACA is an Obama era executive order that allows undocumented immigrants who entered the country as minors to apply for temporary protection against deportation. The program allows DREAMers (named after the DREAM Act, a failed bill with the same provisions as DACA) to apply for renewable work permits and even a driver’s license, making it possible for them to lead a normal life and contribute to society.

In September last year, President Trump announced he would rescind DACA on the basisof it being an overreach of the former president’s executive power. Trump, however, placed a 6-month delay for the program to end, giving Congress time to come up with a legislative solution in its place.

Published on:

high skilled workersWhile Congress continues to debate on a legislative replacement for DACA, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) have presented the “I-Squared Bill,” a piece of legislation designed to reform immigration programs for high-skilled immigration workers, allowing the United States to maintain a skilled workforce and stay competitive in the global economy.

Established as an Obama executive order in 2012, the Deferred Action for Childhood Arrivals (DACA) program allows immigrants who entered the United States as children (also known as DREAMers) to apply for temporary permits protecting them from deportation. In September last year, President Trump announced that his administration would repeal DACA, but would also give Congress six months to come up with a law to replace it.

And that’s exactly what Congress has been struggling to do these past few months. They have, so far, been unable to solve their primary legislative dilemma—arriving at a compromise between meeting the needs of DACA beneficiaries facing deportation and answering Trump’s demands for an end to chain immigration and the construction of his long-promised border wall.

Published on:

last-nook-1-1250984smallA new agreement aims to make sure that labor rights are protected for employees in the U.S., specifically for foreign nationals. The U.S. Justice Department and the Ministry for Foreign Affairs of the United Mexican States recently established a formal partnership to protect migrant workers from discrimination based on citizenship, immigrant status and national origin.

Partnership against Discrimination in the Workplace

Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division, and Mexican Ambassador Carlos Sada signed a memorandum of understanding (MOU) last week, which formalizes the process for immigrant workers to have their discrimination complaints considered by the Justice Department’s Civil Rights Division.

Published on:

1034792_canadian_flag.jpgAs an immigration lawyer who often represents Canadian citizens, it is important to keep up with changes for the TN category — one of the most used visas for Canadian citizens. A few new filing options for TN status is of particular interest to my Canadian clients:

Since October 1st, 2012, USCIS began accepting applications seeking TN classification for Canadian citizens who are outside of the United States. Previously, USCIS only accepted Form I-129 in connection with extension or change of status to TN nonimmigrant. Canadians seeking to file initial applications for TN status had to make them in person at a U.S. Customs Pre-Border Protection (CBP) pre-flight inspection station, land border, or airport. Canadians now have the option of applying at a port of entry or by having their sponsoring employer file ahead of time with a USCIS service center.

Due to the unpredictability and inconsistencies sometimes faced at the border, many TN applicants are now choosing to file ahead of time. This change allows for better planning and predictability for TN applicants.

As a reminder, Immigration Officers will routinely limit the validity of the TN visa to the expiration date of the Canadian citizen’s passport. For this reason, particularly if the employer is requesting a period of admission of three years, it is important to have a valid passport with an expiration date that covers the period requested.

Continue reading →

Published on:

Although politicians are eager to institute reforms in immigration policy that will generate good will in the form of votes from immigrant communities, some policy changes should also be aimed at stimulating the economy. As an immigration attorney in Texas, I am often asked by local students on limited visas why the U.S. government places what seem to be significant limitations for them to establish new companies in the United States. These new companies are the backbone of innovation in a variety of industries and would create a large number of new jobs.

A recent article by two MIT professors, Bill Aulet and Matt Marx address this issue. As teachers at the Martin Trust Center for MIT Entrepreneurship, they encounter dozens of students each year from foreign countries. Many of these students are eager to found new companies in the U.S. that would expand or innovate existing technologies and positively impact American industries, but the present immigration policy does not allow them to engage in entrepreneurial activity.

For students on a student visa, the only options after graduation are to go abroad and find opportunities to establish companies in more welcoming countries like Canada, Singapore or Australia, or to remain in the United States on a H-1B visa which allows them to become an employee at an existing company.

This perceived, unwelcoming attitude from the federal government is based on the government’s clamping down on all avenues of ingress into the country. This is, of course, a response to the horrifying attacks on the World Trade Center and there are legitimate security concerns in limiting wholesale immigration into the country. Unfortunately, this has led to many potential immigrants feeling like they are being interrogated for past or potential crimes through the immigration process.

There are some consequences to the economy that cannot be ignored. Global competition for talented professionals with the resources to create successful companies is intense and America’s restrictive immigration policies are driving these highly desirable entrepreneurs to other countries. This is stifling economic growth at a time when job creation is sorely needed. Almost 25 percent of the highest growth U.S. companies were initially begun by an immigrant.

The federal government and President Obama have recognized the need to retain and attract foreign-born entrepreneurs. Recently, the Entrepreneur Pathways program was announced by Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services. This program provides visa options and the necessary procedures to obtain them to prospective entrepreneurs. The White House is also asking immigration experts to collaborate with Congressional and business leaders to develop immigration proposals that would improve processes for foreign-born entrepreneurial activity.

As an experienced immigration attorney, I am excited to see the United States government take positive steps towards welcoming the best and brightest from other countries. With the recent elections suggesting that immigrant communities will continue to play important roles in American society, it is not a surprise that economic considerations should also provide stimulus for immigration reform.

Continue reading →

Published on:

As an immigration attorney, I am often asked “What are some of the most expeditious ways to gain entry to the country?” If you possess certain professional skills and have an employer waiting to hire you in the United States, one of the easiest ways to enter the country is to obtain a TN Visa. In 1988, when Congress passed the North American Free Trade Agreement (NAFTA), they established the TN Visa to allow entry of certain types of professionals who have a job already lined up in the country. This visa is available to Canadian and Mexican citizens who have been trained as medical professionals, researchers, financial experts, or other high demand professionals.

In order to obtain a TN Visa, you must have an offer of employment from a business or organization in the United States. You must also have a Bachelor’s Degree or educational credentials requisite for the stated profession. You must present the letter of offered employment to immigration officials at the U.S. border along with documentation of educational degree, professional license or employment records demonstrating you are a qualified professional. You must also present a passport or birth certificate proving you are a citizen of Canada or Mexico.

As a TN visa attorney, I can vouch for the numerous advantages to utilizing the TN Visa. The visa provides temporary legal status for up to three years and extends to your spouse and any minor children. Your immediate family members are allowed to reside with you during your time in the U.S., however, they are not permitted to find employment unless they also qualify for a TN Visa or some type of work permit. Furthermore, the TN Visa can be renewed multiple times with no maximum number of years. You do not need to leave the country and re-enter to renew this visa; as long as your employer sponsors you, you may remain in the country.

The TN Visa can be acquired very quickly because it does not require official sponsorship from the Canadian or Mexican government. Unlike other visas, for Canadians, the TN Visa may be obtained at the border as long as proper documentation is provided. There is no cap on the number of Canadians who may receive a TN Visa, however, the number of Mexicans is limited. The TN status also confers a non-residency designation upon you, so you may not be required to pay state or federal taxes on income received.

There are some important considerations to make when choosing the TN Visa. TN status is considered a temporary status by the U.S. government, so you may be asked to show that you intend to leave once the visa expires. If you wish to change your status to legal residency through a green card, you must first obtain a visa other than TN.

Finally, if you apply for a TN Visa, you are strongly advised to seek legal assistance. The paperwork is not overly arduous, but it requires attention to detail and specific knowledge of immigration laws that are best handled by a trained legal professional.

Continue reading →