Visa Lawyer Blog

Alabama has prevailed where four other states which enacted anti-immigrant state laws, including Arizona, did not. Today Alabama law enforcement officers will have the right to question and detain anyone they suspect may be an undocumented immigrant, Gov. Robert Bentley said, after a federal judge upheld key provisions of the state’s immigration law on Wednesday.

Yesterday U.S. District Judge Sharon Lovelace Blackburn returned her ruling for the Department of Justice’s challenge to Alabama’s recently passed HB 56, widely recognized as the harshest state immigration law on the books. Blackburn blocked several parts of the law, but let stand provisions that no other judge considering these laws so far has, including provisions that give law enforcement officers unprecedented power to act as immigration agents.

Mary Bauer of the Southern Poverty Law Center’s legal director, said Wednesday in a statement. “Today is a dark day for Alabama. This decision not only places Alabama on the wrong side of history but also demonstrates that the rights and freedoms so fundamental to our nation and its history can be manipulated by hate and political agendas - at least for a time.”

Blackburn blocked a provision that would have made it illegal for undocumented immigrants and other non-citizens from enrolling in Alabama public colleges and universities from going into effect. She also enjoined the enforcement of provision targeting day laborers’ rights to look for work and be picked up for a job, as well as a provision that would have criminalized undocumented immigrants’ attempts to look for and get a job. Blackburn also blocked a portion of the law that would have made it illegal to give a ride to or harbor a person who’s undocumented.

However, she was unconvinced by arguments from the Department of Justice, faith groups and a civil rights coalition that other severe parts of the law ought to be blocked as well. Blackburn refused to enjoin provisions that equip law enforcement agents with the power to question and detain anyone who they have “reasonable suspicion” to believe may be undocumented. Immigrant and civil rights groups have argued that this provision all but legalizes racial profiling, because it’s impossible to determine a person’s immigration status on sight alone, and any inference would rely on profiling.

“This is precisely contrary to the decision that courts that have looked at similar provision in Arizona and Georgia enjoined,” Linton Joaquin, general counsel for the National Immigration Law Center told Colorlines. NILC is one of the plaintiffs in a coalition of civil rights groups’ legal challenge to the law. “It’s a classic example of an area for states not to be legislating in.”

Blackburn also let stand a provision that demands that K-12 schools track the immigration statuses of their students, and let stand a provision that makes any business contract that an undocumented immigrant enters into unenforceable. Even though the Supreme Court has upheld elementary and secondary education as a constitutional right, undocumented immigrant parents who fear being tracked by the government will likely be too fearful to send their kids to school, said Kevin Johnson, a professor of immigration law at the University of California, Davis.

HB 56 and these provisions in particular are an attempt to frighten immigrant communities and undercut their basic constitutional rights, Johnson said.

“Taking away contract rights is just another effort to strip the few, if any, rights that undocumented immigrants have from them.”

The legal strategy to fight Alabama’s HB 56 is very different from the moral arguments against the law, though.

Continue reading "Federal Judge Rules on Alabama HB 56" »

Attorney Ekaterina Powell spearheaded this remarkable victory. Camille is a citizen of the Philippines. She came to the U.S. in August 2007 on a J-1 visa to train in the hospitality operations of a restaurant. The restaurant subsequently hired Camille to work for them under H-1B visa in the position of Human Resources Specialist. The employer did not follow the H-1B regulations, did not pay Camille the required wage for the position or overtime wages.

On September 28, 2010, the restaurant informed Camille that she is fired effective immediately. Camille has long been thinking about continuing her education and obtaining a Master’s Degree. She immediately started searching for good MBA programs at local schools. On Monday, October 4, 2010, Camille retained an attorney, collected all the necessary documents for Change of Status application which was filed on Tuesday, October 5, 2010.

USCIS denied Camille’s application for Change of Status because, in the opinion of the Service, Camille was not in a lawful status when she filed the Change of Status application because she was discharged from work on September 28, 2011 and was in violation of her status the next day.

Due to several reasons, Camille could not go back to the Philippines in order to apply for a student visa from there. Our office has filed a motion to reopen the case arguing that the denial decision should be overturned and Camille should be granted the F-1 status.

MOTION TO REOPEN THE CASE

In the motion to reopen, we argued that Camille continued to maintain her valid status when she filed the application on October 5, 2011. We presented evidence that there was no bona fide termination of Camille’s employment until February 8, 2011 when the employer notified USCIS. Additionally, and most importantly, we provided proof that Camille was an employee of the restaurant on the date of filing the application because her termination was not effective until October 19, 2010, the date the Separation Agreement between her and the employer became effective.

In addition, we argued that even if the period of previously authorized status had expired, Camille’s circumstances warrant the favorable exercise of discretion to grant the applicant the change of status to F-1 student. The lack of notice given to Camille regarding her discharge from work, Camille’s good faith and expeditious efforts to find an appropriate school program supported the favorable exercise of the Service’s discretion in granting the Change of Status.

There has not been a bona fide termination of Camille’s employment until February 8, 2011 when the employer notified USCIS.

In order to determine whether Camille was in a valid nonimmigrant status, we need to determine the date the employment relationship between her and the H-1B employer terminated.

U.S. employers who hire temporary H-1B nonimmigrants are required by law to notify the Service that an H-1B employee no longer works for the employer so that the petition is canceled. 8 Code of Federal Regulations (“CFR”) 214.2(h)(11)(i)(A). The regulations similarly require the employer to provide the employee with payment for transportation home under the circumstances in 8 CFR 214.2(h)(4)(iii)(E)). Upon the Service’s receipt of an employer’s request to withdraw an H-1B petition, the revocation of the approval of such petition is automatic. 8 CFR sec. 214.2(h)(11)(ii).

Therefore, notification to USCIS is fundamental to ending an H-1B employer’s obligations. The notice triggers USCIS’s ability to revoke the H-1B petition, thereby invalidating the employee’s H-1B status. See 8 CFR sec. 214.2(h)(11)(iii)(A)(1).

USCIS regulations do not provide for the automatic revocation of an H-1B petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation by the employer. This means that the employer remains liable for payment of back wages to the employee up to the point of the petition’s expiration or revocation.

An employee may not be considered properly terminated unless the employer follows the regulations and notifies USCIS that the employment relationship has been terminated so that the I-129 petition is canceled and provides the employee with payment for transportation home. See Amtel Group Florida, Inc. v. Yongmahapakorn, ARB case no. 04-087, ALJ case no. 2004-LCA-006 (Sept. 29, 2006).

Under Amtel, a bona fide termination requires 1) notice to the employee; 2) notice to USCIS that employer has terminated the employment relationship and withdrawing the petition; and 3) employer providing the employee with payment for transportation home.
Therefore, notification of USCIS and payment for return transportation abroad are essential components of evidencing bona fide termination of employment.

In Camille’s case, the employer has not notified USCIS until February 8, 2011 that it is withdrawing the H-1B petition for the beneficiary. Therefore, there has not been a bona fide termination of Camille’s H-1B employment up until February 8, 2011.

Camille was an employee of the Restaurant on the date of filing the application for a change of status on October 5, 2010 because the Separation Agreement became effective only on October 19, 2010

Additionally, Camille signed the Separation Agreement and General Release of All Claims with her employer on October 11, 2010. The Separation Agreement itself became effective on October 19, 2010. The separation agreement serves as additional proof that Camille was an employee of the company when she filed the application for a change of status on October 5, 2010.

Camille’s circumstances warrant the favorable exercise of discretion to grant the applicant the change of status

In the motion, we also requested the Service to favorable exercise the discretion to grant Camille the change of status even if it is determined that her previously authorized status had expired.

Continue reading "Motion to Reopen Success Story - USCIS Approves change of status filed after H1B employee's termination" »

Two bills in Congress would gut the H-2A visa program, replacing it with one more open to abuses.

Few would dispute that the existing system is broken. Its failure can be seen most clearly on farms: An estimated 70% of all agricultural workers in the U.S. are here illegally. However, without undocumented workers, crops would rot in the fields. Skeptics need only consider the plight of growers in Alabama and Georgia, who say that new anti-immigrant state laws have put their harvests at risk. Latino migrant workers have fled those states because they fear being deported, and few documented workers or U.S. citizens have applied for the jobs even though they pay above minimum wage.

It is also not difficult to understand why farmers are reluctant to use the existing guest-worker program that allows them to apply for H-2A visas for temporary foreign workers. Growers say the program is expensive and cumbersome, and requires them to predict harvest schedules and labor needs a year in advance. Such requirements make it difficult for them to determine if they have the need for such laborers or not.

This month, Congress stepped in with two proposals to address the situation, but both have several flaws. Reps. Lamar Smith (R-Texas) and Dan Lungren (R-Gold River) have called for gutting the H-2A visa program and replacing it with one that would roll back existing labor protections for U.S. and foreign workers and make it harder to detect abuses.

Rep. Smith's bill would allow up to 500,000 temporary guest workers into the country annually. But it would eliminate the current requirement that guest workers be paid at the same rate as the average farmworker, and require instead that they be paid the average of what the lowest third of agricultural workers earn. Some say the effect would be to lower the average wage for all workers, which clearly favors Growers at the expense of laborers already struggling to make a living.

Perhaps the most troubling part of the bill is a provision that wage disputes be subject to binding arbitration. Smith says it's intended to reduce frivolous litigation. But forcing temporary workers, who earn little more than the minimum wage, to pay for arbitration while barring them from recouping those costs if they win would essentially make it too expensive to fight abuses. Currently, workers can sue for back wages and punitive damages. This serves as a disincentive to withholding wages.

Lungren's proposal would require guest workers to pay for their own housing and transportation costs. Growers would no longer have to pay workers the prevailing wage, but only the federal minimum wage. And workers would have an amount equivalent to the Social Security tax deducted from their paychecks — money they could recover only when they returned home and demonstrated to U.S. consular officials that they had complied with the terms of their visas. The one strength of Lungren's bill is that workers would not be tied to one employer but could move from farm to farm.

Both bills would shift oversight of the guest-worker program from the Labor Department to the Department of Agriculture, which has no experience investigating workers' financial claims. This would cause the Department of Agriculture to require more resources to handle such claims if the new bill's program were to be abused by employers.

Both bills are not likely to succeed in committee because of opposition from growers, a crucial GOP constituency with deep pockets. Growers don't want to see their labor supply threatened. If Washington really wants to help growers and treat workers fairly, it ought to revive the Agriculture Job Opportunities, Benefits and Security Act. That bill would allow farmworkers who are already here to legalize their status if they agree to pay a fine and continue to work in the fields for at least three years.

So what is a U visa? The U visa is designed for noncitizen crime victims who (1) have suffered substantial physical or mental abuse from criminal activity; (2) have information regarding the criminal activity; (3) assist government officials in the investigation or prosecution of such criminal activity; and (4) the criminal activity violated US law or occurred in the United States (including Indian country and military installations) or the territories and possessions of the United States.

The U-visa program got off to a sluggish start, with advocates complaining that immigration officials were slow to approve applications. It grew quickly, however, with the help of outreach efforts, including local visits by officials with U.S. Citizenship and Immigration Services.

But with increasing awareness has come increasing demand. In the three years that the program has been in place, more than 30,000 applications have been filed and more than 25,600 have been approved. Soon after a visit to Los Angeles this month to promote the program, immigration officials announced that all 10,000 available U-visas had been issued for the fiscal year, which ends Friday.

Since last year, U.S. Sen. Robert Menendez (D-N.J.) and Reps. George Miller (D-Martinez) and Judy Chu (D-Monterey Park) have pushed the Power Act, which would expand U-visas to include victims of labor exploitation and increase the number of such visas to 30,000 annually. But the legislation has gained little traction in Congress. Others hope an increase will be included in separate legislation to benefit crime victims.

Proponents of immigration restriction, such as the Federation for American Immigration Reform (FAIR) and the Center for Immigration Studies, said visas for crime victims should be further limited to the most extreme cases. Email us for more info about this visa.

Read more here

Florida Marlins closer Leo Nunez admitted Friday to using fake documents and a fake ID to sign a professional contract more than a year ago. Central Electoral Commission President Roberto Rosario said at a press conference that Nunez signed a sworn statement saying he is not the person identified in official documents. Dominican authorities also have arrested Hector Pena Diaz, who is accused of falsifying Nunez's documents. Nunez returned to his native Dominican Republic on Thursday amid accusations that he was playing under an assumed name.

A person familiar with Nunez's immigration status told The Associated Press on Thursday that his real name is Juan Carlos Oviedo, and he's 29, a year older than listed in the team media guide. The person also said the Marlins have been aware of the issue for several months. The person spoke to the AP on condition of anonymity because team officials haven't made any public comment on the case.

The future consequences for providing false documentation to obtain work in the U.S. is severe. Juan Carlos Oviedo's actions constitute fraud, which will always come up whenever he will apply for a new visa for any reason to come to the U.S. Although there are no statements by him to clarify why he chose to use false documents to come to the U.S. as an athlete, his actions have certainly cost him hundreds of thousands of dollars and many opportunities. That is why it is always important to provide your proper and accurate documentation when you apply for any visa in the U.S.

This is interesting. An illegal immigrant who filed a civil lawsuit over the ownership of a $750,000 lottery ticket has won the right to stay in the country to fight his legal battle. His lawyer, successfully sought a deferred action on Cua-Toc’s removal order from the U.S. Department of Homeland Security. The deferred action allows Cua-Toc to temporarily remain in the U.S. to have his day in court.

Deportation, also known as removal, is the process of expelling a foreigner from the country. Because it can be tough to fight your case when you're no longer living in the United States–and because deportation can cause tremendous stress to you and your family–you should ask to have your deportation postponed while pursuing all legal avenues. This postponement is called a stay of deportation or stay of removal. A stay is a temporary suspension of an action. When we talk about a stay of deportation or a stay of removal, it means that the judge or court has postponed a scheduled deportation.

Different government agencies are involved in the immigration process. Each agency handles requests for a stay of deportation differently. Typically, a stay of deportation would be requested while you are appealing your case. An appeal occurs when you ask a higher court to review the decision of a lower court in hopes that the higher court will decide that the lower court made a mistake in its decision.

In this case, the reason for stay is due to the Civil action relating to the lottery ticket, and this a creative way on the part of the lawyer to get the client to stay and wait for the case to be adjudicated.

Read the story here

Below is the story of several individuals who were able to come to America through asylum. These individuals have built families here, have jobs and contribute to America by doing their duty like any American citizen. Unfortunately, these individuals have not been able to gain permanent residency since coming to the United States....

Nassir Al-Rifahe never thought his love for America would be questioned.

As a member of the Iraqi National Congress, he worked for years to topple Saddam Hussein before being granted political asylum in the United States in 1997.

But for the last decade, while Mr. Rifahe, 57, lived quietly with his family in Texas and Minnesota, the Department of Homeland Security has refused to grant his application for a green card, instead letting the case languish unresolved.

Under a sweeping section of federal immigration law, the government considers Mr. Rifahe to have engaged in terrorist-related activity, making him ineligible to live here permanently. That the group Mr. Rifahe worked for was once supported by the United States and tried to overthrow Saddam Hussein matters little.

“It is not fair; I want to stay here,” Mr. Rifahe said. “How come they helped me before, but now they say I am a terrorist? I can’t believe this. Never would I do this.”

An estimated 4,000 cases similar to Mr. Rifahe’s are on hold around the country. Some have dragged on for years as immigration officials wrestle with how to handle people previously granted political asylum or refugee status in this country, but whose past affiliations technically bar them from permanent residency.

Many of the cases involve people who belonged to groups in their homelands once backed by Washington, immigration lawyers and human rights advocates say. Often, it is their connection to those groups that allowed the immigrants to come here in the first place.

The situation has created a conundrum for United States Citizenship and Immigration Services, which acknowledges that the individuals pose no threat to national security. But the agency says existing law would force their green card applications to be denied and has instead placed the cases on hold until special exemptions can be created.

Continue reading "Are These Individuals Really Terrorists?" »

As you all know H1B workers that are working in the United States can get a Social Security Number as a result of having that visa. The law also allows the H1B workers to only work for the sponsoring employer. In reality many H1B workers hold side jobs using that SSN number, that is illegal. A September 2011 OIG audit report on the use of Social Security Numbers (SSNs) by H-1B workers. The report claims that 18% of H-1B cases audited by SSA involved elements of fraud.

Each year, the Department of State (State) issues thousands of H-1B visas for temporary workers. Employers use the H-1B visa program to employ foreign workers in jobs that require theoretical or technical expertise in a specialized field. Specialty occupations include, but are not limited to, architect, engineer, computer programmer, accountant, doctor, and college professor. An individual in H-1B status may only work for his/her sponsoring employer after approval by the Departments of Labor and Homeland Security (DHS). The original period of admission for an H-1B nonimmigrant is 3 years, with optional extensions that cannot exceed 3 additional years.

Under the Social Security Act, the Social Security Administration (SSA) assigns SSNs to all nonimmigrants, including H-1B workers, who enter the United States with work authorization. To obtain an SSN, H-1B workers must provide SSA acceptable proof of age, identity, and lawful alien status/current authority to work.

Based on the results of the review, the report estimates about 7,131 (18 percent) of the 38,546 H-1B workers to whom SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer. This estimate includes about 4,433 (11 percent) H-1B workers who had posted wages during our audit period from an employer other than their DHS-approved employer. This estimate also includes about 2,698 (7 percent) H-1B workers who had no posted wages from 2007 through 2009.

Of the 38,546 H-1B workers to whom SSA assigned an SSN from January 1 through December 31, 2007, the report estimate SSA assigned about 7,131 (18 percent) to H-1B workers who may have used their SSNs for purposes other than to work for their approved employer.

Based on the results of this audit, the report estimates that thousands of H-1B workers may have used their SSNs for purposes other than to work for their approved employers. While the writers recognize SSA is not responsible for immigration enforcement, unauthorized work by nonimmigrants impacts the Agency by weakening SSN integrity. The report recognizes there is no easy way to fix this problem. However, they believe SSA has an opportunity to help address unauthorized work by nonimmigrants.

Accordingly, the report recommends that SSA contact DHS to offer to establish a data match agreement to assist DHS’ efforts to identify and reduce the number of H-1B workers who may use their SSNs for purposes other than to work for their approved employer.

Until employers and workers alike will realize, that having a Social Security number is not like having a right to work, such violations will continue. More education in this area, rather than enforcement may be a better way to go.

In this article, attorney Ekaterina Powell from our office provides a summary of the key issues and analyzes the best practices for employers to follow in their immigration compliance efforts.

The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) of the Department of Justice protects the rights of individuals from employment discrimination based upon citizenship or immigration status and national origin, unfair documentary practices when verifying the employment eligibility of employees, and retaliation. OSC enforces the anti-discriminatory provisions of the Immigration and Nationality Act (INA). Individuals discriminated against may file charges with OSC and be awarded back pay and reinstatement, among other remedies.

The INA prohibits employers from knowingly hiring undocumented workers and requires employers to verify their employees’ work eligibility as specified on the I-9 form. The employees must present documentation to their employers to establish both identity and employment eligibility. The I-9 form must be completed for every employee, regardless of national origin, and whether or not the employee is a U.S. citizen.

An employer’s failure to verify the identity and employment eligibility of new employees by completing the I-9 Form violates federal immigration law and may lead to severe civil and criminal penalties.

However, worksite enforcement audits are not the only problems that employers should be concerned about. The employees, including work authorized individuals and undocumented aliens, may also bring private actions to recover damages for violation of anti-discrimination provisions of the INA and may file charges with the agencies enforcing these laws. It is therefore critical for all employers to familiarize themselves with the proper immigration compliance procedures.

Ensuring compliance with the proper employment eligibility verification procedures can be rather complex as it requires understanding of not only the immigration laws but also anti-discriminatory provisions and the employment law.

Even though Human Resources personnel are not expected to be experts in immigration law, the companies are required to follow proper immigration compliance procedures. If you have any concerns regarding compliance measures, if you do not understand your obligations related to completing and maintaining I-9 forms, or if your company has a worksite enforcement audit, seek competent legal assistance.

Employer-Prohibited Conduct under the INA

• Citizenship or immigration status discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with four or more employees, subject to certain exceptions. Employers may not treat individuals differently because they are, or are not, U.S. citizens or work authorized individuals.
• National origin discrimination with respect to hiring, firing, and recruitment or referral for a fee, by employers with more than three and fewer than 15 employees. Employers may not treat individuals differently because of their place of birth, country of origin, ancestry, native language, accent or because they are perceived as looking or sounding "foreign."
• Unfair documentary practices related to verifying the employment eligibility of employees. Employers may not, on the basis of citizenship status or national origin, request more or different documents than are required to verify employment eligibility and identity, reject reasonably genuine-looking documents or specify certain documents over others.
• Retaliation. Individuals who file charges with OSC, who cooperate with an OSC investigation, who contest action that may constitute unfair documentary practices or discrimination based upon citizenship status or national origin, or who otherwise assert their rights under the INA's anti-discrimination provision are protected from retaliation.

What the Employers Should Do to Improve their Immigration Compliance System

Below are few examples of immigration compliance measures that are helpful for employers to implement.
• Avoid using “U.S. citizen-only” or “green card-only” language in job postings. Such hiring policy is discriminatory except when required by law, regulation, or by government contract.
• Do not request specific documents from the employee. Employers cannot prefer one document over others for purposes of completing the I-9 form. For example, you cannot ask for a green card from a legal permanent resident, as the employee is permitted to present any documents from the list of acceptable documents, such as e.g. state driver’s license and unrestricted social security card.
• Avoid selectively verifying employment eligibility of certain employees based on their national origin or citizenship status.
• In order to avoid any appearance of discrimination, verify work eligibility after you have decided to hire an individual and allow your employee three days to provide the documents.
• Do not reverify lawful permanent residents who produce a green card with a future expiration date.
• Do not reverify identity documents.
• During reverification, do not insist on the document presented initially by the employee. The employee may choose to present any of the acceptable documents to verify continued employment eligibility.
• Do not require employees to provide additional evidence of employment eligibility or more documents than required as this constitutes document abuse and is prohibited under the INA.
• Avoid firing the employees immediately after receiving SSA “no match” letters assuming that the employees are not work-authorized. Discrepancies in social security records may occur due to various valid reasons, such as name change, clerical errors, etc.
• Avoid terminating or suspending employees assuming that they are illegal without providing them with notice and a reasonable opportunity to present valid employment eligibility documents.

Special rules regarding asylees

The individual who has been granted asylum does not need to receive Employment authorization document issued by the DHS in order to be eligible to work. The asylees are authorized to work incident to their status whether or not they have DHS-issued work authorization documents. For purposes of I-9 Forms, that means that asylees may present identity document and their I-94 indicating the person has been granted asylum. Do not reverify employment eligibility of asylees as they are authorized to work in the U.S. indefinitely and avoid creating unnecessary hurdles for such individuals.

Employers should familiarize themselves with the Handbook for Employers for the purposes of Form I-9 available on USCIS website. If you have any questions regarding your obligations, consult with a legal counsel to ensure compliance with the applicable laws and regulations. The team of attorneys from our office will be happy to provide assistance with an I-9 audit or with setting up an effective I-9 compliance system.

Recently we have been getting calls from undocumented immigrants suffering from abuse by their employers. Some US employers think that just because a person has no status, that person has no rights. Well they are wrong! The main focus of this article is the rights of undocumented and illegal immigrants in work place.

Contrary to widespread misconception, illegal and undocumented aliens in California are protected from unfair and illegal practices in the work place. Attorney Habib Hasbini from our office specializes in representing and advocating the legal rights of undocumented immigrants and illegal aliens in work place.

The issue of undocumented immigrants and illegal aliens in the work place has been on the rise recently. Various cases in California have been developing and evolving that provide protection for undocumented immigrants and illegal aliens in the work place and establish their right to sue for damages for harassment, discrimination, and establish their right to be compensated for overtime wages and breaks.

California State prides itself on its liberal policies as well as the protections it affords employees against harassment and discrimination regardless of immigration status and insures a discrimination-free environment for all workers regardless of immigration status. Under California Law, undocumented aliens and illegal workers are entitled to all protections allowed under the law including damages resulting from discrimination and harassment in the work place, back pay, emotional distress, and punitive damages. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App. 4th 833.

In an effort to avoid the Hoffman ruling (denying back pay to undocumented immigrants), California Labor Code section 1171.5 was passed to assure undocumented immigrants and illegal aliens all protections allowed under State law. Labor Code section 1171.5 provides, in pertinent part, as follows: all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. Further, Labor Code section 1171.5 provides that for purposes of enforcing state labor and employment laws, a person’s immigration status is irrelevant to the issue of liability, and in proceedings or discovery undertaken to enforce those state laws no inquiry shall be permitted into a person’s immigration status.

California precedent further assured undocumented immigrants and illegal aliens protection from discrimination and harassment in the work place. The employment discrimination statutes apply to undocumented alien employees notwithstanding the illegality of employing them. Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal. App. 4th 833. In a civil action under the Fair Employment and Housing Act, Cal. Gov't Code § 12900 et seq., an injured employee is entitled to all relief generally available in non-contractual actions, including punitive damages. Id. Employment discrimination, particularly that involving sexual harassment, can cause emotional distress and that such distress is compensable under traditional theories of tort law. Id. Compensable emotional distress runs the full gamut of intangible mental suffering, including fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. Id.
Further, Hernandez v. Paicius (2003) 109 Cal. App. 4th 452 allowed undocumented immigrants and illegal aliens to seek damages for unpaid overtime wages, minimum wages, and meal and rest periods violations.

Further, Farmers Bros. Coffee v. WCAB (2005) 133 Cal. App. 4th 533 allowed
undocumented immigrants and illegal aliens to be covered under workers’ compensation state laws. Thus, if an illegal alien or undocumented immigrant incurs a work-related injury, he or she will be entitled to file a workers’ compensation claim against the employer and get the necessary treatment.

If you feel you were subject to discrimination or harassment in the work place, or denied wages including overtime, minimum wages, and meal and rest breaks, or if you feel you were wrongfully terminated, please do not hesitate to contact us. We assure you competent, zealous, and excellent representation in a court of law.

As part of an ongoing commitment to promote diversity and legal excellence efforts in the legal community, Jacob J. Sapochnick, PC and Higgs Fletcher & Mack, have forged a strategic alliance to further provide clients with a diverse pool of legal professionals and high-quality legal services, as well as to reinforce ties within the region.

The new, shared business platform is one of only a few such alliances in the legal industry and will become a platform for innovative legal services delivery. Jacob J. Sapochnick, PC and Higgs Fletcher & Mack will maintain their separate identities and independence, but will also work as a team on specifically identified litigation, labor and employment, public finance, business and Immigration matters.

Law offices ofJacob J. Sapochnick, PC , which was established in 2004, is a respected Immigration Law firm that has quickly made its mark in the Immigration Bar and among practitioners nationwide. The alliance is designed to assist both firms in meeting designated client service needs, while providing quality legal work.

Higgs Fletcher & Mack, which is also one of the oldest and largest firms in San Diego, has long been a leader in its commitment to diversity, building a diverse group of attorneys and staff who reflect not only the diversity of the communities in which they practice but also the clients they serve.

The goal of the alliance is to provide a broad range of clients with the highest quality of service from lawyers with diverse backgrounds. “The arrangement also provides Higgs Fletcher & Mack, the benefit of Jacb J. Sapochnick’s wealth of legal experience, particularly in the Corporate Immigration Law public finance and Hospitality Immigration areas. The alliance, in turn, provides the Law Offices of Jacob J. Sapochnick access, on specific designated matters, to Higgs’s Large practice, legal resources and strategic business units, including government contracts, healthcare, Hospitality and legislative affairs.

“This alliance gives our firm the luxury of working on larger and higher-profile matters that we would not normally attract because of our size, and at the same time provides Higgs access to work and perspective it would not normally receive,” said Jacob J. Sapochick, founding partner. We are already working together to introduce the alliance to our clients and anticipate the alliance will bring new business to both of our firms.

We look forward to you hearing from our clients!!!

We all share the frustration of dealing with VIBE (Validation Instrument for Business Enterprise) requests for evidence. At this point many employers are wondering if this system is really that beneficial to accomplish the Government's goal to verify employers. Some argue it is time to get rid of this program once and for all.

Validation Instrument for Business Enterprises (VIBE) utilizes information contained in the Dun & Bradstreet (D&B) database to verify evidence submitted with I-129 petitions. VIBE is being used for verifying all I-129 petitions, except Os and Ps. Evidence submitted with the petition is given deference, and VIBE information is not reviewed independently of evidence submitted. However, any contradictory information will lead to the issuance of an RFE. VSC has indicated that its database is updated when contradictory information gets resolved.

VIBE RFEs indicate that petitioners may wish to update their information in the D&B database. Given that D&B is a commercial database, there is a very real concern that information offered by petitioners to D&B may be sold or otherwise misused by D&B for commercial gain. Also why give only one commercial system the power to verify all employers filing for visas?

Immigration Service Centers also cannot guarantee the privacy of that information. Accordingly, petitioners must exercise caution and judgment as to whether to update their information in the D&B database given that it is not mandatory. Additionally, the D&B database offers an expedited process for updating the database by paying an extra fee; however, it is important to note that it does not lead to the USCIS databases being updated any quicker.

USCIS headquarters is also monitoring the usefulness of the VIBE program and may abandon it if it is found to be counterproductive. Petitioners can provide their feedback on the VIBE program to VIBE-feedback@dhs.gov. Let them know how you feel about this program.

U.S. Citizenship and Immigration Services (USCIS) is implementing the first phase in a series of proposed enhancements to the EB-5 program. As of today, Applicants will be able to communicate directly with USCIS adjudicators via email in an effort to streamline the process and quickly raise and resolve issues and questions that arise during the adjudication process.

The EB-5 Program, also known as the Immigrant Investor Program, is designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. Form I-924 is the Application for Regional Center under the Immigrant Investor Pilot Program. Below are some questions and answers regarding the new proposed enhancements.

Q1. What are the goals of direct email communication between USCIS and Form I-924 Applicants?
A1. Direct email communication is a customer-service tool to enhance communication between USCIS and Applicants. Applicants may email USCIS questions regarding pending applications, including questions related to Requests for Evidence (RFEs) and Notices of Intent to Deny (NOIDs) issued by USCIS. USCIS may email Applicants to informally ask for clarification on certain issues to facilitate review, understanding and adjudication of the application. USCIS may also send a courtesy copy of an RFE or NOID to the email address listed on the the form and, if applicable, to the email address listed on the Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, associated with the application.

Q2. How will the direct email communication process work?
A2. Applicants with pending applications will be sent an email with a unique identifier and a specific email address to use when corresponding with USCIS. Once assigned an email address, Applicants may use this contact information to send and respond to emails to discuss—either informally or through the RFE or NOID process—issues raised in their regional center applications. An Applicant will receive an email with instructions shortly after his or her Form I-924 application is accepted by USCIS for filing.

The direct email communication process is only available to entities that have a pending Form I-924 application. It is not available to regional center promoters who have pending regional center applications that were filed prior to the implementation of Form I-924 on Nov. 23, 2010.

Q3. Will USCIS use email to issue RFEs and NOIDs, and can Form I-924 Applicants use email to provide evidence in response to such notices?
A3. USCIS may email a courtesy copy of an RFE or NOID to Form I-924 applicants and, if applicable, to attorneys or representatives of record listed on the Form G-28 associated with the application. However, Applicants may not formally respond to an RFE or a NOID via email.

If an RFE or a NOID is issued in regard to a Form I-924 application, USCIS will follow standard procedures and will mail a hard copy of the RFE or NOID to the address listed on the Form I-924 or, if applicable, to the attorney or accredited representative listed on a valid Form G-28.

USCIS cannot accept an Applicant’s formal response to a RFE or NOID via email. Once an applicant is ready to submit the formal response to an RFE or NOID to USCIS, he or she should follow the response submission instructions provided on the RFE or NOID.

Q4. How will USCIS ensure that the attorney or accredited representative listed on the Form G-28 is included in email communication between USCIS and the Applicant?
A4. USCIS can only communicate via email with counsel representing a Form I-924 Applicant if the associated Form G-28 includes a valid email address for the representative. If a valid email address is not provided in the Form G-28, the attorney or accredited representative should provide USCIS with an updated Form G-28 that includes a valid email address. This updated Form G-28 should be sent as a PDF to USCIS’s general EB-5 mailbox at uscis.immigrantinvestorprogram@dhs.gov. An original, fully executed Form G-28 will also need to be mailed to USCIS for inclusion in the Form I-924 application.

Q5. Can the direct email communication process be used to discuss issues regarding individual Form I-526 and Form I-829 petitions or other EB-5 issues not directly related to a pending Form I-924 application?
A5. No. The direct email communication process is solely for discussing issues regarding pending I-924 applications. It is not a forum for general policy and legal questions about adjudicative procedures or decisions, or for questions relating to Forms I-526, I-829, or I-290B. USCIS will not respond to emails received concerning issues unrelated to a currently pending I-924 application.

If you have any questions regarding the EB-5 investor visa program, our office will be more than happy to discuss them with you.

Last Wednesday, House Judiciary Chairman Lamar Smith (R-TX) introduced the American Specialty Agriculture Act (H.R. 2847), legislation that would replace the existing H-2A agricultural worker program with a new H-2C visa program. The new H-2C visa program would be run by the Department of Agriculture. The new program would be attestation-based, would allow workers to stay in the United States for up to ten months, and would be open to half a million immigrants.

Despite substantial efforts to recruit and train U.S. workers, horse farms, ranches, and breeding facilities must use temporary foreign agricultural workers, currently through the H-2A program to meet their labor needs. Without foreign workers, many of the horse breeding farms upon which the horse industry depends could not continue to operate.

The bill would create a new foreign temporary agricultural worker program called H-2C to replace the current H-2A program. The H-2C program would share many characteristics with the current H-2A program such as protections for American and foreign workers and requirements to reimburse H-2C workers for travel and provide for housing. However, the H-2C program envisioned in this bill would have major differences from the current H-2A program intended to make an H-2C program more user friendly. Major provisions of the bill include:

* The H-2C program would be administered by the U.S. Department of Agricultural (USDA). The H-2A program is administered by the Department of Labor. It is expected the USDA would be more attuned to the particular labor needs of farmers.
* The program would be attestation-based to reduce red-tape for agricultural employers. The H-2A uses a certification process that is paperwork and labor intensive.
* The bill would give employers the option to provide either housing or housing vouchers to pay for housing for foreign works. The H-2A program requires employers to provide and maintain housing for workers on site.
* The bill would require employers to pay the prevailing wage rate to H-2C workers. The H-2A program requires employers to pay the adverse effect wage rate that is considered artificially high.
* The bill would require employers reimburse an H-2C worker for the transportation costs from the worker’s home to the place of employment if the worker completes 50% of the work contract period. A recent court decision directs H-2A employers to reimburse workers for travel the first week of employment.
* The H-2C program does not have a “50%” rule that requires employers to provide employment to any U.S. workers who apply until 50% of the worker’s work contract period is elapsed.
* The bill would require employers guarantee to use H-2C workers at least half of the workdays during the period of the work contract. The H-2A program requires employers guarantee three-fourths of the workdays during the period of the work contract.
* Unlike the H-2A program, the new H-2C program does not require the qualifying work to be of a temporary or seasonal nature. This would allow horse farms to use H-2C workers for non-seasonal jobs.
* The bill requires H-2C workers to return home after 10 months of work.
* The H-2C program would have a cap of half a million foreign workers a year. The H-2A program has no cap.

The bill has been referred to the House Committee on the Judiciary Committee. On September 8, 2011 the House Judiciary Subcommittee on Immigration Policy and Enforcement held a hearing on this bill.

Using a little-known government program, the United States Department of Homeland Security (DHS) has pushed nearly 160,000 immigrants — many with deep ties to the United States — through an expedited deportation process, sometimes without adequately informing them of their right to a day in court. Federal authorities are increasingly deporting illegal immigrants through a fast-track program that bypasses court hearings, an effort by the federal government to save money, reduce backlogs and clear detention beds. We see this everyday in our practice as well.

The U.S. has deported more than 160,000 immigrants, the vast majority of whom had no legal representation — and signed documents they may not have understood — under a program that carries severe penalties should they reenter the country. According to the National Immigration Law Center and professors at Stanford Law School and Western State University College of Law, immigrants often signed the so-called stipulated removals because they believed it was the only way to avoid prolonged detention. But by agreeing to the removal order, immigrants can be barred from returning to the U.S. and be subject to criminal prosecution for illegal reentry.

According to a new report, the program, which began nearly a decade ago and dramatically expanded in 2003, has been encouraged by U.S. Immigration and Customs Enforcement (ICE) officers at various levels of the organization. According to documents reviewed by the authors of the report, field offices were encouraged to use the program to boost deportation numbers and given incentives to increase the number of stipulated orders of removal signed by detainees in their jurisdictions.

The authors of the report made many recommendations to improve due process protections for immigrants facing removal, including issuing procedures for using interpreters where needed and allowing detainees to attend legal rights presentations before they are offered the removal option. Let us hope changes will be coming soon.

Many Israelis were defrauded by Mr. San Klein in the past decade, he is known to be the mastermind behind the R1 visa fraud scheme.He admitted orchestrating a multi-faceted fraud scheme that included filing false tax returns and making false claims to enable aliens to obtain religious worker visas and has been sentenced to 63 months in federal prison.

The R-1 visa category is suitable for religious ministers and for persons working in a religious vocation or occupation wishing to migrate to the United States of America. Under the program, churches, synagogues and mosques can ask the gove rnment to grant visas to foreigners to fill vacant positions. The sponsoring group or the foreigner may file the application. An applicant must include letters from a sponsor attesting that he or she has been a member of its denomination for at least two years, that the applicant will fill a specific religious position and is qualified for the job. The application also must provide evidence that the sponsor is a bona fide religious organization that qualifies for nonprofit tax status.

The U.S. government issues several thousand religious worker visas each year. There are two types: temporary three-year visas, and "green cards" that allow foreigners to become permanent residents. The Homeland Security study looked only at petitions for green cards, but the report noted that the three-year visa program faces identical fraud risks. The program dates to 1990, and has been used primarily by the Catholic Church. The State Department said that statistics breaking down recipients by faith are not available, but the majority do not come from predominantly Muslim countries. The program has long been suspected of being susceptible to fraud.

Samuel Klein, 60, a resident of the Hancock Park district of Los Angeles who owned a business called Smartax, was remanded into custody after being sentenced Wednesday afternoon by United States District Judge R. Gary Klausner. Klein's wife, Zipora Klein, 59, was also sentenced yesterday, receiving a prison term of 27 months. Judge Klausner, who also remanded Zipora Klein into custody, ordered the couple to pay more than $765,000 in restitution.

This week's sentencings are the culmination of an investigation by U.S. Immigration and Customs Enforcement's (ICE) Homeland Security Investigations (HSI), IRS – Criminal Investigation, and the U.S. Department of Education. The probe revealed that Samuel Klein filed fraudulent visa applications on behalf of clients, falsely claiming they were religious workers wanted for employment by New York religious institutions.

According to court documents, Samuel Klein filed bogus petitions for religious worker visas under the names of synagogues or Jewish community groups, claiming the religious institutions needed his clients as religious workers. In another case detailed in court documents, Samuel Klein submitted a visa application claiming an alien was needed to work for a New York company when, in truth, the alien had no plans to work for the company and did not have the qualifications claimed on the petition.

We hope this will be a lesson for other Immigration visa criminals that the government will eventually catch up.

We wanted to be the first to report of an alarming trend that we just learned about last month. Over the past month we received calls from family members of detained individuals who were picked up coming into San Diego via domestic flights from NYC, Miami and Atlanta. Most of the individuals were here on expired visas, but with no criminal records. Until now, Immigration officials were not looking for individuals moving in the US on internal flights without a special reason.

We also learned from a TSA official, and from a Delta employee, that the government is acting on a tip connected to a drug enforcement operation from the above referenced destination. We feel that this may be also related to Immigration enforcement at the same time.

In the past, increased border vigilance in Arizona has caused a spike in human smuggling traffic moving through Los Angeles International Airport, but not through San Diego's Lindbergh Field.

The Border Patrol has long had a presence at Lindbergh Field, and agents can sometimes be seen near security checkpoints and in other parts of the airport. The airport investigations will continue until further notice, we will keep our readers informed as new information becomes available.

Attorney Andrew Desposito of our office wrote this brief commentary on the split in courts across the country with their application of Padilla v. Kentucky

The U.S. Supreme Court case Padilla v. Kentucky (2010) was an important ruling for many aliens facing deportation. In that case, the U.S. Supreme Court held that an attorney provides ineffective assistance of counsel by failing to inform a client that a guilty plea carries a risk of deportation. The problem with the ruling is that the U.S. Supreme Court failed to clarify whether this decision could apply retroactively with regards to direct and collateral appeals. The main concern is whether the decision announced a new constitutional rule and should not be applied retroactively, unless an exception applies, or whether it is not a new constitutional rule and could therefore be applied retroactively. This distinction has been critical for many Circuits in its decisions on whether to apply Padilla to other cases in their jurisdictions.

Recently, the Seventh Circuit held that Padilla does not apply retroactively. The Court concluded that because Padilla announced a new constitutional rule, that unless there is an exception to retroactively applying the case, Padilla will not apply to cases already resolved on appeal. The Tenth Circuit has also held that Padilla does not apply retroactively for the same reason. In addition, the Third District Court of Appeal of the State of Florida has sided with the Seventh and Tenth Circuits on the issue, leaving it open for the Eleventh Circuit to make a decision on the case if it goes up on appeal to that court.

While these Circuit Courts have decided against applying Padilla retroactively, other district courts have applied the case retroactively. The State Court of Minnesota Court of Appeals concluded that Padilla applies retroactively under an old rule of constitutional law. The Minnesota Court concluded that Padilla falls under the Constitutional rule under Strickland v. Washington. The court decided that Padilla was an extension of Strickland regarding the rules of ineffective assistance of counsel. The Strickland rule states that: (1) that the counsel’s representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for the counsel’s errors, the outcome of the proceedings would have been different. The Minnesota court determined from the majority decision in Padilla that the Strickland rule was being extended by this recent decision. The State Court of Texas First Court of Appeals also ruled that Padilla applies retroactively on the same grounds.

Although the Fifth and Eighth Circuit Court of Appeals have not weighed in on the matter, with cases being decided in their jurisdictions (Texas and Minnesota), it is only a matter of time until those Circuits decide whether to follow their Sister Circuits in not applying the rule retroactively, or deciding that Strickland must be applied. It will be interesting to see how the other courts decide on the matter, and whether the U.S. Supreme Court will then have to step in and make a final ruling on the application of Padilla as a constitutional rule of law.

Client walked into the office and demanded info about the new Obama amnesty."I need to apply as soon as possible and hope you can help me." Where did you hear about amnesty, I asked. A local paralegal told me about it and told me to put a deposit down and the price might go up.

Ever since the 8-18 announcement, similar inquiries come in and I fear this is not the end of it. So what can prospects do, check and double check.

The Obama Administration announcement is NOT an amnesty, it is NOT about granting legal status, and is NOT something that you can sign-up for!

The Obama Administration made very clear that the announcements do NOT provide any way to “apply” for a work permit or “EAD” nor is there a new way to apply to remain in the United States. The change announced is not about giving people work permits or legal status. The announcement applies ONLY to cases already in the system, ensuring that low priority cases do not continue to clog up an already overburdened immigration court system.

Do NOT believe anyone who tells you they can sign you up for a work permit (Employment Authorization Document or “EAD”) or get you legal status based on the Secretary Napolitano’s August 18, 2011 announcement! Anyone who says that is not to be trusted!

There is NO “safe” way to turn yourself in to immigration and there is NO guarantee that your case will be considered “low priority.” ANY person who comes into contact with immigration authorities may be arrested, detained or even removed.

Only a QUALIFIED IMMIGRATION LAWYER can evaluate your case and tell
your about your rights. Do NOT seek legal advice from a notario or immigration consultant.

What the new policy IS:

The Obama Administration announced the creation of a high-level working group made up of Department of Homeland Security and Department of Justice officials who are to do the following:

 Review all cases already pending before the immigration courts. Those that are
considered “low priority” may be administratively closed. Those that are considered a “high priority” will be prosecuted more aggressively.

 There are no rules or guarantees that a particular type of case will be considered a “low” or “high” priority. Recent guidelines are helpful, but no one can tell you if your case is a low priority--only immigration authorities will make that decision.

 In the future, immigration authorities will review the cases people before they are
placed in removal proceedings. Those that are “low priority” may not be referred
to the immigration court.

 Create department-wide guidance to help USCIS, CBP, and ICE agents and officers make better, more consistent decisions about who to place in removal proceedings.

 Issue guidance on providing discretion in compelling cases for persons who
already have a final order of removal.

In other words, the August 18th announcement was preliminary and nothing has been implemented yet. Any details about how the review process will work, what cases will be considered low priority or how to have a particular case considered have not been decided.

The best course of action is to consult an immigration lawyer or accredited representative, not to take action because a friend, neighbor or coworker encourages you to act.

The college dreams of thousands of students who are illegal immigrants moved closer to fulfillment Wednesday after the state Senate approved a bill that for the first time would give them access to public financial aid.

Part of a two-bill package known as the California Dream Act, the measure would allow undocumented students who qualify for reduced in-state tuition to apply for Cal Grants, community college waivers and other public aid programs. To be eligible, they must be California high school graduates who attended schools in the state at least three years, and demonstrate financial need and academic merit.

The Senate vote brought relief to Brian Lee, a UCLA undergraduate who was brought to the U.S. at age 4 from South Korea and fell out of legal status when his mother did not renew their visas. Lee, a biology major who hopes to become a dentist, said the chance to apply for financial aid would help him finish school more quickly and alleviate the stress of working multiple under-the-table jobs. As it is, he has worked for two academic quarters to pay for each term he attends.

"I feel there is light at the end of the tunnel, finally," said Lee, 24, who has completed just two quarters in more than two years.

Carlos Perea, a 19-year-old undocumented student from Mexico who attends Santa Ana Community College, said the bill's passage would help him achieve his goal of transferring to a four-year university. He wants to major in political science and work for a nonprofit organization when he graduates.

But opponents decried the bill, AB 131, saying the state could not afford new spending, particularly on illegal immigrants.

"It's against the rule of law for benefits to be given out to people here without legal status," Sen. Doug La Malfa (R-Richvale) said in an interview. "People are just insulted. The state is out of money and we are opening a new door here for more funds to be expended."

The measure passed 22-11 on a party-line vote, with Democratic support and Republican opposition. It is expected to return this week to the Assembly, which previously approved it, for concurrence on Senate amendments. If approved, it will be sent to Gov. Jerry Brown for his signature.

During the floor debate, La Malfa read a letter from a Chico-area resident who complained that his daughter, a U.S citizen, recently had her state financial aid cut and now must consider getting a job or postponing college.

The constituent said the bill has "shattered dreams" for college students who are legal California residents and shows that lawmakers are out of touch.

But Sen. Ron Calderon (D-Montebello) told his colleagues the measure is about rewarding young people who work hard and are good students.

"This is about promoting success," he said. "Those who work hard, become good students, should not be punished for decisions made by their parents."

It is not known how many undocumented students would be eligible for the aid. A Senate committee analysis estimated the bill's cost at about $40 million. That includes $13 million for Cal Grants, which average about $4,500; up to $15 million in community college waivers; and $12 million in institutional aid from the University of California and California State University systems.