Visa Lawyer Blog

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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.

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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.

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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.

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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?

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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?

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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:

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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.

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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.

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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.

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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.

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