Month: October 2015

ICE Supervisors Accused of Forcing Agents to Attend Sex Parties

Investigators from the federal Immigration and Customs Enforcement agency are looking into allegations about a supervisor using government time to recruit workers for “private sexual ‘swinger’ parties” at his home.  

The complaint was submitted to the Inspector General for the Department of Homeland Security.  He is accused of “gross sexual misconduct.”  This complaint comes from a string of recent complaints made about management in the office.  

The complaint claims that the employees at the ICE Enforcement Removal Operations office have been asked to partake in the sexual parties at the home of the supervisor.  It goes on to say that the recruitment has been going on for over a year.  The complaint claims the “practice is coercive of subordinate employees and an abuse of authority.”

ICE

Agents form the Office of Professional Responsibility scheduled interviews with agents in San Diego.  Four of the agents interviewed were either asked to partake in the sex parties or were alleged to have helped organize them.  

“The parties take place while their kids are watching a movie in their rooms.  Kids are told that mom and dad are working on a project with the other couples and not to disturb them nor knock on the bedroom door for at least an hour,” says the complaint.  

The carrying of cell phones is prohibited at the parties.  The report claims some of the employees attend because they are “intimidated, afraid or foolishly ‘wow’d’ thinking participation will land them a promotion.”

It goes on to say, “Employees are being affected, traumatized, coerced and violated.  It is an abuse of authority and needs to stop.”

Many complaints have been filed regarding the San Diego office.  Some of these complaints have claimed racism and sexism are problems in the office.  Racial slurs have become common in the office.  

Felix Luciano, the head of the union that represents ICE workers in San Diego, said “They are not interested in getting to the root of the problem,”

ICE spokeswoman, Lorie Haley, said that the agency has directed its efforts toward creating a safe work environment through meetings with workers and supervisors.  She said, “So far there have been no findings of discriminatory actions or significant deficiencies in local management practices.”

List of countries not eligible for the 2017 diversity visa lottery

Citizens from the following countries are not eligible to participate in the 2017 Diversity Visa lottery:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

USCIS issues proposed STEM OPT extension rule

On October 19, 2015, the Department of Homeland Security (“DHS”) published a proposed new rule covering an extension of the Optional Practical Training (“OPT”) program for students working in Science, Technology, Engineering and Math (“STEM”) fields.  The agency previously issued a STEM extension rule, but that rule was challenged in federal court for alleged defects in the “notice and comment” provisions of federal rulemaking laws.  The federal judge presiding over that legal challenge gave the government time to issue this proposed new rule.

The proposed rule is named Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.  The public will have 30 days to provide input with DHS regarding how the rule might be improved.

OPT allows foreign students to work for U.S. employers for up to 12 months, while maintaining valid F-1 status, after graduation.  Due to the high demand for H-1B visas, the STEM Extension benefits employers and foreign workers by giving them additional opportunities to apply for the H-1B lottery in more than one year.

EAD

STEM Extension

The new rule would allow F-1 students working in STEM fields to obtain an OPT extension of 24 months.  Thus, a STEM student could conceivably work for up to three years in valid F-1 status after graduation.  This represents an increase from the 17 month extension contained in the prior rule.  As before, STEM students would only be allowed to work for employers who have enrolled in the E-Verify employment eligibility verification program maintained by USCIS.

Unemployment Expansion

Under the current rule, the F-1 student can only accrue 90 days of unemployment during an initial 12-month grant of OPT.  This would remain the same.  Under the proposed rule, however, STEM OPT students would be allowed 60 days of unemployment during the 24-month period, which represents an increase from the current rule of only 30 days while on the extension.

Prior STEM Degrees

DHS proposes to allow F-1 students who previously used a STEM OPT work authorization to enroll in another STEM academic program and receive an additional 24 month STEM OPT extension.  In addition, students in F-1 status who graduate from a non-STEM degree program and only receive the 12 month grant of OPT would be eligible to use a previously-awarded STEM degree as a basis for the STEM Extension if the job directly relates to the previously obtained STEM degree.

Protections for U.S. Workers

Under the proposed rule, U.S. employers would have to verify under oath certain statements.  These statements include (1) that the employer has sufficient resources and supervisory personnel to provide appropriate mentoring and training, (2) that the employer will not terminate or lay off any full or part time U.S. workers as  a result of providing the STEM OPT to the F-1 student, and (3) that the job offered will assist the student in obtaining practical training.

Mentoring and Training

If the employer wants to sponsor the STEM Extension, the new rule requires that a Mentoring and Training Program be put in place.  Evidence related to the mentoring and training would have be be provided to the F-1 student’s Designated School Official at their college or university.

Same terms of Employment

The employer would have to provide compensation, hours and duties that it provides to similarly situated U.S. workers.  STEM OPT workers would have to work at least 20 hours per week.

Site visits

The proposed rule makes clear that DHS has the discretion to visit employer’s work places to make sure the program requirements are being satisfied.

Accredited schools only

STEM OPT extensions would only be available from schools that are accredited by an accrediting agency listed with the U.S. Department of Education.

We will continue to monitor these proposed changes to the STEM Extension.  The deadline for public comment is November 18, 2015.

Jim Hacking is an immigration lawyer based in St. Louis, Missouri.  Jim assists employers in hiring foreign workers and obtaining the necessary work authorization for those workers.  He is also passionate about educating employers and foreign workers regarding the entire immigration process.  Jim may be reached at jim@hackinglawpractice.com.  

Download a PDF of this article here – OPT STEM Extension

Hazelton, PA to pay attorney’s fees for ACLU and others

A U.S. Judge, James Munley, ruled that the City of Hazleton, Pennsylvania, is obliged to pay $1.4 million to civil rights attorneys who derailed the city’s immigration law.  

Munley granted the attorneys roughly half of the $2.84 million that they had hoped for in the case.  The case began in 2006 and made it to the Supreme Court.  

Munley ordered Hazelton to pay $1.38 million in fees and $47,594 in costs.  

An ACLU attorney, Omar Jadwat, said “Hazleton knew and its politicians knew all along that if they were sued and lost, there would be a bill to pay at the end.”

The Hazelton law sought to punish landlords whose clients did not have legal residency and companies that employed immigrants who lacked the legal means of working in the United States.  

Those that challenged the law included: the ACLU, Latino Justice, the Community Justice Project, and attorneys from the Philadelphia law office of Cozen O’Connor.  

The trial that brought about Munley’s court order to get rid of the law and the appeals to a circuit court and the Supreme Court caught international attention.  The case also brought attention to Hazelton Mayor Lou Barletta and aided in his winning of a congressional seat.  He was a large proponent of the law following two cases of murder that involved immigrants.  

City council voted in many versions of the law following the murders.  

Mayor Joseph Yannuzzi when he was a councilman, “We felt we were right. We still feel we are right. Of course, they don’t agree with us.”

Hazelton’s attorneys argued that immigrants, who didn’t have the correct documentation to be in the U.S., strained the city’s funds.  

Munley blocked the parts of the law that involved businesses and landlords so the law was never enacted.

In 2010, the U.S. Third Circuit Court of Appeals in Philadelphia upheld Munley’s ruling.  In 2011, the Supreme Court requested that the Philadelphia court reconsider, citing a ruling that upheld a similar law in Arizona.  

The Philadelphia court kept its decision and the case died in 2014 when the Supreme Court decided against further involvement.  

Barletta went on to say, “What is legal today in Arizona or Fremont, Nebraska, is not legal in Hazleton. That’s unfair, and the U.S. Supreme Court should step in and fix this patchwork of local laws intended to combat illegal immigration.”

Jadwat went against, “One thing that is clear for a long time now, partially because of this case and also because of other cases, is that the path Hazleton chose to go down … is not a path open to cities.”

Can an H1b employer include a liquidated damages clause if employee leaves?

Our office frequently receives calls and emails from foreign workers either working on an H1b or contemplating going to work for an H1b employer.  There are lots of rules and regulations regarding the employment of foreign workers and people are often confused about the process.

One of the main questions that people have is whether an employer can require an H1b employee to pay for the fees associated with the visa application.  The general rule is that foreign employees are prohibited from paying any of the fees – filing, legal or otherwise – associated with an H1b application.

I shot a video a few months ago that address this very issue.  You can watch it here.

A remaining question is whether an employer who wants to hire an H1b worker can require the foreign employee to sign a contract which includes a liquidated damages clause or a penalty for leaving the employer before a date certain?

The regulations on H1-B employees specify that employers can charge the worker liquidated damages should they cease their employment before the agreed upon date, but not penalties.  What is the distinction between these two charges?

H1b logo

The federal regulations specify that the law of whatever state in which the employment took place defines the difference between a penalty and allowable liquidated damages. So it will be a matter of state law.  If the employer is in one state and the employee another, a question may arise regarding which state’s law on liquidated damages applies.  The contract itself might set forth which law applies in what’s called a “choice of law” provision.  In any event, you will need to consult with a lawyer to see what your state’s law allows.

While the details of state laws differ, in general, the distinction is that liquidated damages are specific amounts of money agreed to by both parties when the contract is signed, and they must be “reasonable approximations or estimates” of the damaged caused to the employer by the employee breaching the contract.  Penalties are also agreed to in the contract, but are not “reasonable approximations.”

Put simply, the purpose of a permissible liquidated damages clause is to put the employer in the financial position they would be in without the breach, while the purpose of a penalty clause is to go beyond this and punish the employee for breaching.  Additionally, it is generally required by states that the relationship between the parties is taken into account (i.e., if the employer used fraud or coercion in inserting the damages clause into the contract, their position will be looked on less favorably).

Finally, the federal regulations do not allow the employer to include the certain parts of the H1-B application fee as part of any liquidated damages clause.

For the exact language of the regulations, see 20 CFR 655.731(c)(10)(i)-(ii).  This is a very technical area of the law.  If you have concerns about a contract that your employer wants you to sign, or that you already signed, you should consult with an experienced immigration employment attorney.  Feel free to give us a call at (314) 961-8200.

DOJ farms out deportation court translations to lowest bidder; justice suffers

DOJ logo

Throughout the United States, courtroom interpreters are declining to sign contracts to work in immigration courts, due to what they claim to be unfair labor conditions and low pay. One immigration court interpreter, Carmelina Cadena, said regarding the unjust wages, “They’re keeping me from making a decent living for me and family. It’s ridiculous.”

In 2014, less than 15% of cases in immigration courts were conducted completely in English.  SOS International, the new contractor for interpreters, is reporteldy hindering the function of immigration courts and putting immigrants that are under threat of deportation in more difficult situations.  

A former president of the American Immigration Lawyers Association, Laura Lichter, went on to say, “The translation can be absolutely critical in the success of a case, or whether someone ends up being deported.”

Because immigration courts are part of the executive branch, they are administered by the Department of Justice.  The DOJ officially made SOSi their contractor in July.  

There is currently a backlog of roughly 456,000 cases in immigration courts.  This keeps many immigrants in limbo.  According to an article in BuzzFeed News, interpreters have complained about their low pay and lack of respect for the importance of their work.  The interpreters claim that these poor working conditions will lead to the hiring of unqualified people, that would ultimately hurt immigrants facing deportation.  

Cadena said that she was making more than the usual interpreters because of the rarity that she can translate English into the scarcely spoken Guatemalan Mayan language of Akateko.  She received $412 for a 7-hour work day, or roughly $59 an hour.  She was able to support her three sons and unemployed husband with that rate of pay.  

SOSi has offered her $46 an hour for the first two hours and a lower rate for each additional hour.  Cadena has said that many of her coworkers that speak more common languages have been offered far less. Cadena said, “People are saying, ‘I should just go get a job at a factory — I can’t survive on that’.”

A Spanish interpreter from Texas, said that he was offered between $30 and $35 for the first two hours, with pay decreasing by the hour.  “It just seemed really odd that, the more you work, you actually make less money.”

Former AILA president, Laura Lichter, has said that judges rely heavily on an immigrant’s spoken testimony in determining whether they have grounds to be granted asylum.  The bargaining for cheaper interpreters is deeply hurting the chances of immigrants being allowed asylum.  

A spokesperson for the Department of Justice won’t comment on SOSi’s employment practices, except to say that “the past performance of vendors was evaluated during the competitive process.”

An interpreter who works with Spanish and French-speaking immigrants said, “I pay my rent with my immigration court job.  I’m looking, very quickly, for whatever other alternatives I can find, because I don’t like what’s coming.”

USCIS prevented from arguing green card applicant was a terrorist based on prior decision

A federal judge ruled that the United States cannot deny an alleged former terrorist from changing his status from asylee to permanent U.S. resident.  

Mohammad Sher Islam fled to the United States from Pakistan in 2000.  His application for asylum was originally denied but was reversed and approved by the Board of Immigration Appeals.  In the United States, asylum may be granted to a person that suffered  “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The U.S. Citizenship and Immigration Service kept Islam from changing his status because he “engaged in terrorist activity.”

USCIS alleged that he had been involved in “Tier III” terrorist organizations: All Pakistan Mohajir Students Organization and Muttahida Quomi Movement-Altaf Faction.  The Immigration and Nationality Act contains provisions to prevent someone with that association from attaining permanent residency.  

Islam sued USCIS and the Department of Homeland Security under the Administrative Procedures Act in December 2014.  San Francisco’s Federal Court sealed the case on August 12, 2015.  

Islam claims that the issue of his alleged involvement with terrorist organizations was settled during his 2007 asylum hearing and that collateral estoppel prohibits the government from relitigating it.  

U.S. District Judge Richard Seeborg ruled in favor of Islam, “The central dispute between the parties is whether collateral estoppel applies to the issue of Islam’s involvement in terrorist activities.  An immigration judge’s decision to grant an application for asylum necessarily includes a determination that the applicant was not involved in terrorist activity prior to the preceding.”

Seeborg went on to say, “Collateral estoppel is triggered by the prior proceeding and, accordingly, plaintiff’s motion must be granted and defendant’s cross motion denied.  Because no exceptions to the doctrine of collateral estoppel apply here, the USCIS’s decision to deny Islam’s application for adjustment of status was arbitrary, capricious and contrary to law.”

The Board of Immigration Appeals had also found that Islam had not been involved in any terrorist activity.  

 

SF-federal-court-3a

Immigrant Whiz Saves Boy on a Plane

Donald Trump and others of his ilk would have you believe that immigrants are criminals, deviants and thugs.  Fox News has gotten much mileage vilifying immigrants on a regular basis.

So you may not have heard the story of Dr. Khurshid Guru last week.  Guru is an Indian American and the Director of Robotic Surgery at Roswell Park Cancer Institute in New York.

During a recent flight from Spain to the U.S., a 2-year old toddler suffered an asthma attack, requiring medication.  However, his parents had mistakenly included the treatment in their checked luggage.

The plane only had an adult inhaler, so Dr. Guru grabbed materials on the plane – a plastic water bottle, a cup, some tape and an oxygen tank – and built the boy a nebulizer.  The contraption allowed the boy to take in both oxygen and the asthma medicine simultaneously.   After a few minutes, the boy’s oxygen level was normal in just a few minutes.

Our office deals with immigrants every single day and we see the positive contributions that the vast majority of them are making.  This story is just one example (albeit very dramatic) of how allowing smart immigrants like Dr. Guru into the country can really help Americans – even 2-year old boys who simply can’t catch their breath.