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  1. IER Settles with Setpoint Systems Over Discrimination Against Non-Citizens

    By: Bruce Buchanan, Sebelist Buchanan Law PLLC



    The Immigrant and Employee Rights Section (IER), a Division of the Justice Department, has reached a settlement with Setpoint Systems Inc., an Ogden, Utah, engineering company. The settlement resolves an investigation into whether the company engaged in hiring discrimination against non-U.S. citizens protected under the Immigration and Nationality Act’s (INA) anti-discrimination provision.

    The investigation found that from 2015 to 2017, Setpoint Systems had an unlawful policy of hiring only U.S. citizens for professional positions and refusing to consider otherwise qualified non-U.S. citizens based on the company’s erroneous understanding of the International Traffic in Arms Regulations (ITAR). ITAR regulates specific exports of defense articles and services and limits the access of certain sensitive information to U.S. citizens, U.S. nationals, lawful permanent residents, asylees, and refugees. ITAR does not authorize employers to only hire U.S. citizens. The anti-discrimination provision of the INA makes it unlawful for an employer to discriminate against an individual in the recruitment and hiring process based on citizenship status, unless authorized by law.

    Under the settlement agreement, Setpoint Systems will pay $17,475 in civil penalties to the United States for the alleged unfair immigration-related employment practices; train its Human Resources personnel on their legal obligations to not discriminate by viewing a free online IER webinar presentation; review and revise, if necessary, any existing employment policies that relate to nondiscrimination based on non-U.S. citizenship status; ensure all job advertisements have been reviewed by legal counsel or an employee who is trained on anti-discrimination laws; post notices informing workers about their rights under the INA’s anti-discrimination provision; and be subject to departmental monitoring and reporting requirements for three years.

    This settlement is another indication that the federal government is serious about cracking down on discrimination based on whether one is or is not a U.S. citizen. For answers to many other questions related to the IER and immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, and is available at http://www.amazon.com/dp/0997083379.
  2. CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?

    by , 06-25-2018 at 09:57 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    Because of two recent USCIS interpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPT workers do not work at third-party worksites under their SETM OPT work authorization until the USCIS issues better and clearer guidance on the issue.

    Working and training at third-party worksites is probably legal. However, by working at the third-party worksite the STEM OPT trainee puts himself at risk for enormous negative immigration consequences, including a ten-year bar from entering or living in the United States.


    USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION

    Earlier this year, and without any warning or notice, the USCIS changed its webpage to include this key change:

    the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

    The USCIS’ justification for the third-party worksite prohibition is, apparently, because ICE (Immigration Customs Enforcement) would lack the authority to investigate at the third-party worksite.

    Curiously, ICE has not produced any guidance on this point. ICE likely would be surprised to learn that they do not have the authority to investigate a worksite where it believed immigration fraud was being committed.

    The website change alone is probably not good law. There has been no regulatory change. There has been no notice and comment period, something required for regulatory change. The “ICE lacks investigative authority” justification for the prohibition against third-party worksites is weak.

    If the only thing that USCIS had done was updated their webpage, then MU Law’s position might be that STEM workers could continue to work at third-party worksites, provided that the other qualifications of the program were being met, however, this is not the only change for F-1 students.


    F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAIN STATUS

    A brand new USCIS policy, effective August 9, 2018, says that F-1 students including STEM OPTs will now accrue “unlawful presence” “the day after he or she engages in an unauthorized activity.” Accordingly, after August 9, 2018, the USCIS is expected to find that STEM OPTs working at third-party worksites are engaging in “unauthorized activity” and are therefore “unlawfully present”.

    Even worse, a USCIS official can retroactively find that an F-1 student engaged in “unauthorized activity”. A number of leading university administrators have made this point directly to USCIS Director James Cissna.

    This is a massive change in long-standing USCIS policy. Under the prior interpretation, an F-1 student or OPT did not accrue unlawful presence until an immigration judge said so. Engaging in “unauthorized activity” meant that an F-1 worker “failed to maintain status,” which is a lesser finding.

    The distinction between “failing to maintain status” and “unlawful presence” is enormous:


    • When someone fails to “maintain status” they must immediately leave the US but can ordinarily immediately reenter the US.
    • When someone is “unlawfully present” for more than 180 days, they must immediately leave the US and are barred from reentering the US for 3 years. When someone is “unlawfully present” for more than 365 days, they must immediately leave the US and are barred from reentering the US for 10 years.



    Consider this hypothetical scenario:

    August 9, 2018 – STEM OPT continues to work at a third-party worksite

    April 1, 2019 – STEM OPT worker files an H-1B cap petition

    May 1, 2019 – STEM OPT worker’s H-1B cap cases is selected in the H-1B lottery

    August 10, 2019 – STEM OPT worker receives an RFE from USCIS asking for proof that he has only engaged in authorized activity.

    September 20, 2019 - H-1B is denied. USCIS finds that STEM OPT worker’s third-party work was “unauthorized activity”. USCIS also finds that the STEM OPT worker was “unlawfully present” from August 9, 2018 until September 20, 2019, a period of more than 365 days. Consequently, the STEM OPT worker must immediately leave the US and cannot reenter the US for 10 years.


    CONCLUSION


    At this time, MU Law recommends that STEM OPT workers are not placed at third party worksites unless comprehensive analysis is done regarding the viability of the assignment. STEM OPT workers at third party worksites run the risk of 3 and 10 year bars from reentry into the US. It is our hope that USCIS provides greatly clarity on these points and engages the public on the issue, rather than creating law by fiat.

    ___________
    Please read the Musillo Unkenholt Healthcare and Immigration Law Blog at www.musillo.com and www.ilw.com. You can also visit us on Facebook, Twitter, and LinknedIn.
  3. Letters of the Week: June 25 - June 29

  4. Trump's Racist Road to One-Man Rule: Abolish Immigration Courts; Send "Invaders" Back Without Hearings, Due Process or Protection of Law. Roger Algase

    This comment has been slightly revised and updated as of June 25 at 2:03 pm.

    Donald Trump made clear in a June 24 tweet that his open antagonism toward Latino and other non-white immigrants has reached the point where he wants to overthrow the rule of law entirely, when the rights of immigrants are concerned. This could be the beginning of the end of democracy as we know it in America.

    The Guardian reports that Trump, in his tweet, referred to immigrants (whom he accused of "infesting" America only a few days ago) as "these people" who "invade our country" in the classic language of far right anti-immigrant vilification. He also said that he wants all unauthorized immigrants deported without any hearing or judicial process at all. This goes against everything America stands for and strikes at the heart of our democracy.

    The Guardian's report is available at:

    https://www.theguardian.com/us-news/...tion-dhs-texas

    The Chicago Tribune reports the exact text of Trump's tweet as follows:

    "We cannot allow all these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came."

    http://www.chicagotribune.com/news/n...624-story.html

    Admittedly, this is somewhat tortured English, but it is obvious that Trump means that he wants to send unauthorized immigrants back where they came from without any judicial process whatsoever. To be sure, US law already provides for expedited removal without a judicial hearing in many cases, but this tweet indicates a desire to abolish the legal process in removal cases entirely.

    This is quite a remarkable statement from a chief executive who is sworn to uphold the laws and constitution of the United States.

    There may have been a time when comparing Trump's attacks on brown-skinned immigrants who are not from "Countries Like Norway" as a means to seize absolute power to Hitler's attacks on the Jews for the same purpose may have struck many people as extreme and beyond the bounds of legitimate comment.

    After all, Trump does not advocate or support genocide or mass murder, and he is not in the least anti-Jewish. But as time goes on, with each passing tweet, rally and other expression of venom and vituperation against non-white immigrants, and with each new attack on the rule of law in America, it becomes more and more difficult to ignore the alarming parallels between the way that Trump is using anti-immigrant prejudice to overthrow democracy and the rule of law in America, and the way Hitler used hatred against the Jews to destroy democracy and take absolute power in Germany.

    See, 11/16/2017The Independent (UK):

    Donald Trump's attempt to control the US Justice System is alarmingly similar to Hitler's strategy in Nazi Germany.

    https://www.independent.co.uk/voices...-a8059031.html

    And for another perceptive, very much on-point comment about Trump's relentless drive toward absolute power, see Heather Digby Parton on alternet.org: (June 25)

    Donald Trump's Authoritarian Power-Grab: Due Process is For Wimps

    https://www.alternet.org/donald-trum...-process-wimps

    Yes, its all about immigrants. But it's not only about immigrants. It's about Americans too.

    Anyone who thinks that Trump's attempts to deprive brown, non-European immigrants of all legal rights will not ultimately lead to the extinction of freedom and democracy for American citizens as well is engaging in self-delusion.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 06-25-2018 at 01:05 PM by ImmigrationLawBlogs

  5. Melania Trump Wore "I Really Don't Care" Jacket While Visiting Separated Children; Rabbi Warns Dehumanizing Immigrants Risks Genocide. Roger Algase

    There has been a great deal of media speculation about why Melania Trump wore a jacket saying: "I really don't care. Do U?" when she visited an immigration detention center in Texas to express her obviously sincere and genuine sympathy for the terrified and traumatized young immigrant children who were torn away from their parents by her husbands brutal and sadistic attempts to keep non-white immigrants out of the US at all costs - some of whom may never be able to see their parents again even though the president has since backed down on this heartless and cruel policy.

    https://www.theguardian.com/us-news/...-visit-clothes

    The reason that the First Lady, even though she was clearly trying to help the children, wore clothes with such a callous and heartless message, was that she was, in all probability, trying to tell the world what Donald Trump's real attitude is - not only toward the suffering of the children and the mental anguish and torment of the separated parents, but to the fear, anxiety and dashing of hopes to immigrants whose lives are being devastated and destroyed by the president's agenda of mass expulsion and exclusion of immigrants in all categories, legal as well as unauthorized - merely because he doesn't like their skin color or religion; or because they come from places that are not "countries like Norway".

    Indeed Donald Trump's entire agenda toward immigrants from every part of the world outside Europe could be summed up in the words on the First Lady's Jacket:

    "I really don't care. Do U?"

    In the meantime, as Donald Trump continues to stir up hatred against Latino and other non-white immigrants by associating them with MS-13, most recently at a June 23 campaign rally in Nevada for that state's incumbent Senator Dean Heller

    (See June 23 Washington Post - I don't have the link but the report is available through Google)

    a UK rabbi, Laura Klausner, warns that demonizing immigrants as less than fully human could create the same conditions that led to genocide against the Jews.

    https://www.theguardian.com/us-news/...resa-may-visit

    Speaking specifically about Trump's child separation policy, Rabbi Klausner stated:

    The numbing of empathy, the dehumanization of other people through the encouragement of disdain are documented stages in history that have led to atrocities and even genocides."


    And as a reminder that Trump's treatment of immigrants from Central America and other non-white parts of the world which he calls "shithole countries" whom he regards as less than human is not limited to just making speeches comparing them to "animals" but is actually at the foundation of his immigration policies, see immigration advocate Juan Escalante in vox.com (May 19)

    Trump's 'animals' comments: It's not just rhetoric. Trump's policies treat immigrants like me as animals

    https://www.vox.com/first-person/201...als-immigrants

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 06-24-2018 at 08:38 AM by ImmigrationLawBlogs

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