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By: Bruce Buchanan, Sebelist Buchanan Law
Effective January 18, 2017, U.S. Department of Justice’s (DOJ) Civil Rights Division has implemented a final rule to update regulations concerning enforcement of employment-related anti-discrimination provisions under the “unfair immigration-related employment practices” section of the Immigration and Nationality Act (INA).
One of the most interesting changes is the Office of Special Counsel for Immigration-Related Unfair Employment Practices, usually referred to as Office of Special Counsel or OSC, is being renamed the Immigrant and Employee Rights Section. It will remain part of DOJ’s Civil Rights Division. However, the individual in charge of the Immigrant and Employee Rights Section will still be referred to as Special Counsel due to statutory language. Thus, this may cause some confusion for attorneys and the public.
Probably the most significant change in the regulations is a definition of “discriminate” to clarify that an employer’s intent to discriminate must be based on national origin or citizenship status. This definition of intent does not consider what reason an employer may have had. Under the new rule, DOJ explains that if the employer is intentionally treating the permanent resident differently for an unlawful reason, such as citizenship status, then the employer has discriminated.
Other significant changes in the new regulations include:
Individuals who submit a discrimination claim within the 180-day period provided by law now have an additional 45 days to submit information if the Special Counsel decides that they did not provide enough information to meet the requirements for a “charge”;Charges may be filed after the 180-day time limit under certain circumstances;The Special Counsel may file a complaint based on an investigation the office initiated, up to five years after the date of alleged discrimination;Definition of the term “citizenship status” includes refugees and asylees, which is consistent with Special Counsel’s current practice;Definition of the statutory phrase – “more or different documents than required under such section” to be consistent with OCAHO case law;Definition of the term “charge” to make it broader as to what is acceptable; andDefinition of the term “hire”.
by Chris Musillo
For much of the second half of 2016, the US Embassy at Manila has been delaying Visa appointments because of a bad interpretation of law. Through the combined effort of MU Law, AAIHR, and AILA, it appears that the Manila Post will no longer incorrectly interpret these visa applications, which should lead to speedier visa issuance.
The Manila Post was incorrectly readjudicating previously approved green card applications. In some instances, these applications were several years’ old. The Post would often ask for updated prevailing wage determinations, posting, and labor certifications. MU Law and the AAIHR, through AILA and other communication channels spent much of the second half of 2016 explaining in detail why these readjudications were contrary to law. These interpretations were limited to the Manila Post. Other Posts were not readjudicating these types of applications.
The Post has confirmed that they agree with our legal position and will no longer readjudicate these applications. The Post has also set out a framework to prioritize these types of matters.
In the last week or two, MU Law has noticed that visa application delays have ceased, which likely is the result of this Manila Post policy change. MU Law commends the Manila Post on its willingness to dialogue on this issue.
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 and follow us on Twitter.
Updated 01-19-2017 at 10:23 AM by CMusillo
Obama's parting shot at immigrants, via the Washington Post:
"The Obama administration tried to persuade the Supreme Court Tuesday to retain a federal law that makes it easier to deport immigrants who have been convicted of crimes.
If the justices agree, the outcome could help the incoming Trump administration fulfill its pledge to step up the deportation of immigrants who are convicted of crimes.
The justices heard argument in the administration’s appeal of a lower court ruling that struck down the law as unconstitutional. The case concerns a provision of immigration law that defines a “crime of violence.” Conviction for a crime of violence subjects an immigrant to deportation and usually speeds up the process.
It was unclear from the argument how the court would rule."
Click here for the full article.
The Refugee Ball took place on Tuesday, January 17, 2017. It was wonderful to see hundreds of people from all different backgrounds and countries come together to celebrate America's humanitarian immigration system.
Economist, talk show host, women's rights advocate, and amazing singer, Amal Nourelhuda (originally from Sudan), performs at the Refugee Ball.
There were musicians from Ethiopia, Sudan, Uganda, the Democratic Republic of Congo, and Tibet. There was a Persian rapper. Our emcee was a journalist/asylum seeker from Ethiopia. We had Lebanese, Tibetan, and Ethiopian food, and Syrian cookies. There was artwork by a young Honduran asylum seeker and an Iranian refugee. Speakers included the former Chairman of the Board of Immigration Appeals (who now has his own blog), an asylee from Azerbaijan, and the president and CEO of HIAS, a non-profit organization that assists refugees. We also had a special guest appearance by Congressman Jamie Raskin. All-in-all, not a bad way to spend an evening.
One message of the Refugee Ball is that asylum seekers and refugees contribute in valuable ways to our society. They bring their skills and talents to America, and we are stronger because of their presence here. Also, by offering asylum to those who work with us and those who share our values, we demonstrate to our allies that we are on their side; that we have got their back. This makes it more likely that people around the world will cooperate with us and work to advance the values that our nation aspires to: Democracy, freedom of speech, women's rights, LGBT rights, freedom of religion, equality, peace. When we have the cooperation of our allies, our country is safer and more secure, and our asylum system helps engender that cooperation.
And of course, granting protection to those in need of assistance is the right thing to do. I know that if my family members had to flee the United States, I would want more than anything for them to receive a friendly reception in their country of refuge. Do unto others as you would have them do unto you.
Another message of the Ball is that advocates for asylum seekers and refugees remain committed to assisting people who have come to our country for protection. And although the incoming Administration may create a more difficult environment for our clients, our commitment to those seeking our country's protection will not wane.
For me, though, the most important message of the Ball was that of the courage and perseverance displayed by the refugees and asylum seekers who I saw there. Many of the people who participated in the event were themselves victims of terrible torture and persecution. But there they were at the Ball--singing and dancing, giving speeches, making art and food for us to enjoy. Each of them provides an example of how the human spirit can survive extreme adversity and go on to create beauty, and of how life can triumph over death. I can't help but be inspired by their examples.
So while we really do not know what to expect in the days and months ahead, we can draw strength from each other, and from the examples set by the refugees and asylum seekers themselves, who have endured great hardships, but who still have hope that America will live up to the high ideals that we have set for ourselves.
To those who participated in, supported, and attended the Refugee Ball, Thank you. Thank you for contributing your time, talent, energy, and money to supporting the cause of refugees and asylum seekers. Thank you for inspiring me, and for reminding me of why I work as an asylum attorney. I feel optimistic knowing that we are united in our goal of welcoming the stranger, and that we are all in this together to support each other.
Originally posted on the Asylumist: www.Asylumist.com.
This post has been updated on January 18 as of 9:30 am in order to reflect a late breaking POLITICO story.
POLITICO reports on the morning of January 18 that President-elect Trump, in a TV interview, has promised a more compassionate approach to immigration than mentioned during his campaign, including a merit-based system that gives priority to skilled workers. In Trump's words:
"We're going to have great people and people of great talent coming into our country...And we're going to have a lot of heart, believe me."
Trump specifically mentioned Silicon Valley companies who are moving to Canada because "they can't get the people they need...because we don't allow them into this country".
If the new president follows through on this plan, that would radically conflict with proposals that two of his closest immigration advisors, Senator Jeff Sessions and Breitbart News chief Stephen Bannon, have made to limit or drastically reduce H-1B, or even legal immigration in general, in order to accomplish a major demographic change back to the pre-1965 past, disguised as protecting American workers.
My original post appears below.
Proposals to restrict H-1B visas, perhaps even to the vanishing point, are not new. Neither are they limited to only one of our two parties.
As long ago as 2005, a Democratic Congressman, Bill Pascrell (NJ), introduced legislation (HR 4378), which, if it had become law, would have made drastic changes in the H-1B program in order to prevent it from, in Rep. Pascrell's words: "tearing down the labor standards" of American workers.
Among the bill's provisions were the following:
1) H-1B employers would have had to recruit American workers first.
2) Placing H-1B workers at the site of a third party employer ("outsourcing") would have been prohibited.
3) The annual limit for visas would have been fixed at 65,000 (eliminating the extra 20,000 visas for US master degree holders).
4) The maximum number of years in H-1B status would have been reduced from 6 to 4.
To be continued in a future post.
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, he has been helping mainly skilled and professional immigrants obtain work visas and green cards.
Roger's practice is concentrated in H-1B specialty worker and O-1 extraordinary ability work visas, J-1 training visas, and green cards though labor certification and opposite or same sex marriage.
Roger's email address is email@example.com
Updated 01-18-2017 at 01:38 PM by ImmigrationLawBlogs