Musings on Immigration

We are frequently asked what obligation does an employer have when it terminates a foreign national employee, and what options are available to the foreign national employee if he is terminated.  This memo provides guidance to employers in dealing with immigration matters for the employee who is terminated, with or without cause, or who chooses to leave the employer.  Employers terminating foreign employees should also consider arranging for immigration counsel to advise foreign employees on the consequences of termination as one of the services provided to workers being terminated. The foreign national employees referred to here do not include lawful permanent residents or U.S. citizens. Foreign national nonimmigrant workers usually fall under the H-1B, L, E, O, and TN temporary work visa categories. The most common nonimmigrant work visa, H-1B, is used for an “alien who is coming to perform services in a specialty occupation.” L visas are used for in...

By Anna Erwin, Associate Attorney Has your employment been terminated while under H-1B status or have you terminated an H-1B employee? The standards under immigration law for what a previous H-1B employee can receive in back wages after termination are now significantly affected by whether the employee obtains subsequent employment after termination. H-1B status is of particular benefit to foreign national employees in the U.S. because they can transfer their status to a new employer. An H-1B transfer employee also benefits the employer because that transferred employee does not count against the H-1B visa cap for that year.  But if the employer/employee relationship is terminated during the employee's H-1B status, both sides must be aware of back wage eligibility or liability. The Basis for Back Wage Liability In Amtel Group v. Florida, Inc., the Administrative Review Board found that for an employer to avoid liability after the termination of an H-1B employee, th...

In a recent unpublished decision , the Board of Immigration Appeals (“BIA”) issued a rather devastating opinion on the subject of immigration status and adjusting to permanent residence.   The BIA held that the foreign national accrued “unlawful status” (but not “unlawful presence) during the pendency of his ultimately denied H-1B extension of status petition and after the initial H-1B had expired.   As a result, the foreign national was subject to the provisions in INA Section 245(k) barring him from eligibility for adjustment of status because he had accrued more than 180 days of unlawful status. .   In yet another weird twist of the complexity of immigration law, the foreign national was” lawfully present” and authorized to work during the period of the pending H-1B extension (up to 240 days), but, because his petition was ultimately denied, all of that time was NOT held to be “lawful status.”   The BIA held that upon the denial of the extension of status, th...

Perhaps it has been too long since USCIS has truly been held accountable for its actions that it has become desensitized to the legal constraints under which it is permitted to operate. The USCIS is not given carte blanche to make whatever changes or interpretations it wants to long-standing immigration law, without first complying with the Administrative Procedure Act (”APA”). Yet, twice in the last two months the USCIS has issued “memos” that so dramatically change the framework under which these key programs operate, that it has clearly violated the APA. USCIS has taken ignoring Federal Law to a new level with its recent actions. Of course we all know that the USCIS has been illegally changing the rules as they apply to individual cases for the last several years by engaging in “rulemaking by RFE;” making ridiculous requests for evidence, not based on any legal requirement, but rather, based upon someone’s bizarre notion of what they think the law should be, not what it really is. N...

As many of our members know, the USCIS is like a Jekyll and Hyde creation. With one face, USCIS happily grants benefits, issues approvals, and welcomes people as citizens. With the other face UCSIS distrusts everyone, believes there is a lie on every application, and looks for ways to disqualify clearly qualified applicants. As you all know, this is not an exaggeration. It is true of an agency still steeped in the “Culture of No.” Many of you remember the Religious Worker “Benefit Fraud Assessment Teams” that went out to make sure that the Catholic Church was actually still in business. The ability of the USCIS to conduct effective program reviews, rather than just sticking with its core strength of adjudications is rather dubious, to say the least. Recently AILA shared some information about a “new” benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the “fraud fee” in the H-1B program. This new program...

Ewing Marion Kauffman Foundation released a s tudy today that indicates placing limits on foreign workers in the U.S. is not the answer to the country’s rising unemployment rate and may undermine efforts to spur technological innovation. You have to ask yourself, “Is anyone surprised by this?” I mean come on. What kind of person actually believes that by STOPPING advanced degreed university graduates from coming to the United States the United States will be better off? I mean, besides the folks in Congress! The study by Harvard professor Vivek Wadhwa titled America’s loss is the world’s gain: America’s New Immigrant Entrepreneurs, Part IV, researchers surveyed highly skilled immigrants who had studied and/or worked in the United States and subsequently returned to their home countries. “A substantial number of highly skilled immigrants have started returning to their home countries in recent years, draining a key source of brain power and innovation,” said Robert E. Litan, vice ...

The Associated Press ran an absolutely poorly researched piece on H-1B visas and the Banks receiving Bailout money from the Federal Government on Sunday. The article implied that as the Banks were taking bailout money they were simultaneously firing US workers and hiring cheap foreign labor. After I finished laughing out loud, I began to weep. I was stunned that a veteran reporter at the AP would be willing to draw this conclusion from the biased numbers drawn up by a group opposed to immigration in general and to H-1B visa holders specifically. The piece makes no effort to talk to an independent source, or to check the information against publicly available data. The article notes that the banks benefiting from bailout monies “requested visas for more than 21,800 foreign workers over the past six years for positions that included senior vice presidents, corporate lawyers, junior investment analysts and human resources specialists. The average annual salary for those jobs was $90,7...