Category Archives: Immigration

Litigation may be Key in Response to Rising Denials of Employment-Based Visas. What Strategies Should Employers Consider when Hiring or Retaining Noncitizen Professionals?

Many U.S. employers have recently experienced frustration over legal obstacles to keeping high quality foreign-national employees. These valuable employees have often been with the company since finishing a degree and sometimes even interning with the employer. Other employers experience delays in hiring foreign nationals needed for specialized positions despite the obvious qualifications of the candidate.

These employers’ frustrations reflect the current climate of immigration law and policy. The standards applied by the U.S. Citizenship and Immigration Service (USCIS) in adjudicating H‑1B temporary work visa petitions have been shifting, both formally and informally, to the detriment of businesses seeking to hire or retain noncitizen professionals in specialty occupations—as well as those they would seek to employ. This, along with other similar trends in how the executive branch enforces immigration laws, requires that employers and their legal advocates test new strategies on behalf of their clients. If USCIS denies your H-1B petition and your awesome employee may have to leave the country, what options do you have?

Immigration lawyers, who typically fight their battles within administrative agencies, are increasingly looking to federal courts for judicial review of agency actions. One recent case highlights that strategic litigation can have a powerful impact, and suggests that specialized litigators may be a vital addition to the legal toolbox for businesses that depend on international hiring. See RELX, Inc. (d/b/a LexisNexis USA) v. Baran, 2019 U.S. Dist. LEXIS 130286.

Subhasree Chatterjee earned her bachelor’s degree in computer science and engineering in her home country of India in 2011, and her master’s degree in business administration and analytics in the United States, from the University of Ohio, in 2016. She also has several years of professional experience in data analytics in both India and the United States.

Chatterjee began working as a data analyst for LexisNexis at its Raleigh, North Carolina Center for Excellence in 2017, at which time she was authorized to work in the United States because of the Optional Practical Training (OPT) associated with her F-1 student visa. But Chatterjee’s student visa and OPT was set to expire on August 3, 2019.

Lexis filed a petition for Chatterjee to remain in the United States through the H-1B nonimmigrant visa program so that she could continue in her role as data analyst supporting the company’s “flagship” product, LexisAdvance. The government denied the petition on the grounds that the data analyst position was not a “specialty occupation.”

By statute, a specialty occupation is “an occupation that requires theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.” 8 U.S.C. § 1184(i)(1).   And by regulation, the position must meet at least one of four criteria to qualify as a specialty occupation: (1) a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position; (2) the degree requirement is common to the industry in parallel positions among similar organizations or the position is so unique or complex that only an individual with a degree can perform it; (3) the employer normally requires a degree or its equivalent for the position; or (4) the nature of the specific duties are so specialized and complex that the knowledge required to perform the duties is usually associated with attainment of a baccalaureate degree or higher.  8 C.F.R. § 214.2(h)(4)(iii)(A).

In support of the H-1B petition, Lexis and Chatterjee submitted what the court would later call a “mountain of evidence” on three out of these four regulatory grounds, any one of which would have been sufficient to qualify the data analyst position as a specialty occupation. They responded to a request for redundant evidence and, following an initial denial, pursued administrative reconsideration. These efforts were unsuccessful.

To justify its denial, the government asserted, contrary to its regulations and past practices, that a specialty occupation is one requiring a degree from a particular academic discipline. In other words, for example, if the position could be filled by someone with a degree in computer science or engineering, then it could not be a specialty occupation.

Exactly one month before Chatterjee’s work authorization would expire, she and Lexis filed a lawsuit in federal district court in Washington D.C., serving USCIS, the Department of Homeland Security, and leaders of each, challenging the denial as a violation of the federal Administrative Procedure Act (APA) and seeking a preliminary injunction.

Given the extremely short timeline before Chatterjee’s status would expire, the court placed the case on an expedited schedule to resolve the matter on its merits, skipping over the motion for preliminary injunction. Plaintiffs moved for summary judgment. The government spontaneously reopened the H-1B petition and then moved to dismiss the lawsuit, arguing that the reopening deprived the court of jurisdiction because plaintiffs’ claims were no longer ripe.

On August 1-2 (the two days immediately preceding the expiration date of Chatterjee’s work authorization), the court held a hearing on both motions. The government’s motion was denied from the bench. In a subsequent memorandum, District Judge Emmet Sullivan concluded that the government’s “position [was] untenable,” that the “decision was not based on a consideration of the relevant factors and was a clear error of judgment,” and that “USCIS acted arbitrarily, capriciously, and abused its discretion.” RELX, Inc., 2019 U.S. Dist. LEXIS 130286, *28, 31 (quotations omitted).

At the same time, plaintiffs’ summary judgment motion for an order directing USCIS to grant Lexis’s petition and place Chatterjee on H-1B status was granted—and just in time. Chatterjee was able to keep her job and remain in the United States, and Lexis continued business as usual with its data analytics team at full strength.

In the current market, employers and their legal counsel need to use all avenues available under the law to help hire and retain top talent. Litigation is not only an option, but may be a necessary addition to the overall toolbox of talent management strategies, especially when it comes to international hiring.

Which Provisions of California’s So-Called ‘Sanctuary State’ Legislation Affecting Employers are Currently in Effect?

While portions of California’s Immigrant Worker Protection Act have been enjoined, employers remain subject to notice obligations. California passed a statute limiting the extent to which employers could cooperate with federal immigration officials. Litigation quickly ensued, and a recent decision enjoined enforcement of part of the law, while leaving other provisions unaffected. With the speed of the news cycle, employers may understandably require clarification as to which immigration policies are actually in effect. What portions of the sanctuary state law were enjoined, and what parts remain effective?

The Immigration Worker Protection Act (AB 450), which went into effect in January 2018, imposed three primary obligations on employers:

  1. A prohibition against allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace, or to access employee records, without a judicial warrant;
  2. A prohibition against re-verifying the employment eligibility of a current employee outside the time and manner required by federal law; and
  3. A requirement to provide notice to employees upon receipt of a Notice of Inspection of Form I-9, and after the inspection, provide notice regarding the results of the inspection.

Almost immediately, the law was challenged in court, in a case called United States v. California. On July 5, 2018, John A. Mendez of the United States District Court for the Eastern District of California issued a preliminary injunction blocking the enforcement of the first two of the above obligations, but not the third obligation concerning notice. The court reasoned that the first prohibition on cooperation with federal immigration officials likely “impermissibly discriminates against those who choose to deal with the Federal Government,” and therefore violates the intergovernmental immunity doctrine. The court also found that the second prohibition on early re-verifications likely violates the Supremacy Clause. The notice obligation, on the other hand, regulates the employer’s “failure to communicate with its employees,” and is therefore likely a permissible exercise of state power.

Accordingly, as it currently stands, the notice provisions are in effect. Under the statute, employers must notify employees and labor union representatives within 72 hours of receiving a Notice of Inspection of Form I-9. Employers must include the name of the federal agency conducting the inspection, the nature of the inspection, the date the employer received the inspection notice, and a copy of the inspection notice. Additionally, within 72 hours after the inspection takes place, employers must also provide affected employees and their labor union representatives with the results of the inspection, a timeframe for correcting any deficiencies found, the date and time of any meetings with the employer to correct any deficiencies found, and a notice to the employees about their rights to representation during any meeting with the employer.

It is important to note that at this point the court entered a preliminary injunction; the ultimate enforcement of the statute may change when the case reaches completion, and even then, an appeal to the Ninth Circuit (and perhaps ultimately to the Supreme Court) is likely.

Quirky Question #254, Foreign currency fluctuations and expat employees

Question:

I am an HR manager working for a US company that sends employees on long term assignment abroad.   One of our senior assignees recently rang me to say how worried he is about Greek politics and the potential effect on the Euro.   He wanted to know what I was going to do about it.   I was a bit puzzled at first as, obviously, I can’t sort out a European currency crisis, but it turns out that what he is really worried about is his own pay.  His salary is set in Euro, and he is worried about how he will pay his US dollar mortgage and his mother’s US care home bills if the Euro falls.  I reassured him that we would look at his salary again if that happened (which didn’t really satisfy him).  Later, I began to worry about what would happen if I promised a pay raise and then the value of the Euro rose against the dollar again.   What can we do to make things more secure for our employees working overseas without taking on too much business risk? Answer→

Chamber of Commerce v. Whiting: Impact on Employers

Chamber of Commerce v. Whiting

On May 26, 2011, the Supreme Court issued its decision in Chamber of Commerce v. Whiting, No. 09-115. In the 5-3 decision, with Justice Kagan taking no part, the court affirmed the Ninth Circuit and held that the federal Immigration Reform and Control Act (“IRCA”) does not preempt provisions of Arizona’s Legal Arizona Workers Act (“LAWA”) imposing civil penalties on employers who hire unauthorized aliens and mandating that employers conduct employee background checks through E-Verify.

Background

The IRCA makes it “unlawful for a person or other entity . . . to hire, or to recruit or to refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien.” 8 U.S.C. § 1324a(h)(2). While the IRCA prohibits states from imposing “civil or criminal sanctions” on employers who hire unauthorized aliens, it does allow states to impose penalties through “licensing and similar laws.” LAWA does just that, allowing Arizona courts to suspend or revoke the licenses necessary to do business in that state if an employer intentionally or knowingly employs an unauthorized alien. Ariz. Rev. Stat. Ann. §§23–211, 212, 212.01.

The IRCA additionally requires employers to document via an Employment Eligibility Verification Form, commonly known as Form I-9, that all individuals hired after November 6, 1986, are either United States citizens or aliens properly authorized to work in this country. Answer→

Quirky Question # 165, Employment Cases Before the U.S. Supreme Court

Question:

This question is not especially “quirky.” I know that last year, you described the important employment cases that the U.S. Supreme Court was going to consider in the following year. I’ve seen a lot of press recently about the Walmart-Dukes case. What other employment cases will the Supreme Court be considering next term? Answer→

USCIS Fraud Unit Site Visits

USCIS Fraud Unit Site Visits

The Fraud Detection and National Security (FDNS) unit of U.S. Citizenship and Immigration Services (USCIS) has been conducting employer site visits for several years.  The unit has recently expanded the worksite visit program by adding substantially more staff and broadening its investigative efforts.  What this means is that the employers that have sponsored foreign workers for employment (e.g., H-1B petition) may have an increased chance of getting a site visit by an FDNS unit officer (or a private investigator contracted by USCIS), who, in most situations, will arrive at the worksite unannounced.  Employers will want to be prepared for such surprise visits.

FDNS officers typically spend anywhere from 15 to 90 minutes at the employer’s site.  The officer will likely ask to speak to a human resources manager.  Infrequently, the foreign national beneficiary of the petition in question and his or her direct supervisor or manager may also be contacted. Answer→

Downsizing and Foreign Nationals, Quirky Question # 76

Quirky Question # 76:

I read with interest your analysis of alternatives to layoffs [Quirky Question # 71].  We have a slightly different issue.  Like many companies, we are facing the difficult prospect of downsizing staff.  We are a small technology company with operations in the US and an office abroad.  Among our professional staff are a number of foreign nationals with a veritable alphabet soup of immigration statuses.  We have a permanent resident, a couple of H-1B’s, and L-1A, an L-1B, a TN and an F-1 foreign student thrown in for good measure  If we lay off or reduce the hours or salaries of these individuals are there any special considerations we need to think about from an immigration perspective? Answer→