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  1. IER Settles Immigration-Related Retaliation Claim Against InMotion Software

    By: Bruce Buchanan, Sebelist Buchanan Law

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    The Immigrant and Employee Rights Section (IER) of the Department of Justice has reached a settlement with InMotion Software LLC (InMotion), a software developer and recruiter in Texas, resolving their investigation into whether the company violated the Immigration and Nationality Actís (INA) anti-discrimination provision.

    Based on its investigation, the IER concluded InMotion retaliated against a work-authorized job applicant (Charging Party) after she protested InMotionís requirement that she provides a Permanent Resident Card (green card) even though she had a valid employment authorization card issued by the USCIS. After the Charging Party complained that InMotionís request constituted discrimination under the INA, InMotion removed her from its pool of candidates available for job placement. The INAís anti-discrimination provision prohibits employers from retaliating against or intimidating workers because they have opposed employer conduct that may violate that provision or have participated in the IERís activities to enforce it.

    Under the settlement agreement, InMotion will pay $3621, the maximum civil penalty for an instance of retaliation, to the U.S. government, remove any references to the investigation or settlement from the Charging Partyís personnel file, post notices informing workers about their rights under the INAís anti-discrimination provision, provide all newly hired employees with a Lists of Acceptable Documents to provide with the I-9 form, train its staff, and be subject to departmental monitoring and reporting requirements for one year.

    Companies need to be aware of the laws relating to retaliation if an employee files an anti-discrimination claim or alleges such discrimination. For the answers to these issues and many others related to employer immigration compliance, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. New USCIS Memo Makes it Harder to Approve Employment-Based I-129 Extension Petitions and Could Create Many More RFE's and Denials. Roger Algase

    Almost immediately on being confirmed as the new USCIS Director, Lee Francis Cissna, an immigration critic and former staff worker for Charles Grassley (R-Iowa), one of the Senate's most virulent opponents of H-1B and other legal immigration programs, see:

    https://www.propublica.org/article/t...written-senate

    announced a dramatic change in adjudications policy regarding extensions of already approved H-1B and other employment based I-129 petitions.

    Up to now, as an October 23 USCIS memo correctly states, extension petitions for already approved I-129 petitions with the same employer, without any change in job duties, have been routinely approved unless there was some glaring mistake in the original approval. As the new USCIS memo states:

    "The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination."

    The memo continues, ominously:

    "The updated policy guidance rescinds the previous policy."

    The memo then concludes by saying that, in effect, even in a routine extension case, the petitioner will now need to relitigate the entire case, and show all over again that the offered position and beneficiary are qualified for H-1B approval.

    In the context of Trump's Hire American policy, mentioned in the memo, which policy is in open conflict with not only the H-1B law, but with the laws relating to many other employment-based non-immigrant visa categories (such as O-1, L-1 and R-1) which do not require a labor certification or giving preference to US workers, the new memo is an obvious invitation to USCIS adjudication officers handling I-129 extension cases to look for reasons to overturn previous approvals - all in the name of protecting "the interests of US workers" to quote from the memo.

    One can expect that the new USCIS memo will lead to a blizzard of RFE's and denials of routine employment-based extension petitions.

    Sabotaging the employment-based legal immigration system is the obvious intention of the new policy, which is clearly designed to discourage and cause confusion and uncertainly for US employers who wish to hire or extend the employment of foreign workers in any category. This includes, but is not limited to, the highly skilled professionals whom the sponsors of the RAISE Act claim that they intend to favor by eliminating or drastically reducing key family and less skilled worker green card categories.

    The new memo, which could even be the prelude to large-scale attempts to revoke previously approved employment-based petitions before they come up for renewal (though there is no indication of this so far), shows exactly how hollow, if not fraudulent, the claim of the RAISE Act's supporters is that the purpose of that bill is, allegedly, to make America's immigration system more "merit-based".

    Under this new USCIS memo, immigrants with the most "merit" - the highly educated, highly skilled and professional workers who are doing the most to benefit our economy by making American employers more competitive and create more jobs for American workers, will be the ones who are hurt most of all.

    The only people who benefit will not be American workers - whom the Trump administration and its Congressional and state legislative allies are trying to devastate by union busting, opposition to minimum wage and equal pay legislation, and destroying their health insurance and environmental protections.

    The main beneficiaries of this memo will be Trump's white nationalist supporters who are looking for one more (of many) excuses to keep Asian, Middle Eastern, Latin American and other non-European immigrants out of the United States.

    The full memo is available at:

    http://www.pressreleasepoint.com/print/1231510
    _________________________________

    Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. For more than 35 years, Roger has been helping mainly skilled and professional immigrants from diverse parts of the world obtain work visas and green cards.

    Roger's practice is concentrated mainly in H-1B specialty occupation and O-1 extraordinary ability work visas, J-1 training visas; and green cards through Labor Certification (PERM), and through opposite sex or same sex marriage and other family relationships. Roger's email address is algaselex@gmail.com



    Updated 10-24-2017 at 12:02 PM by ImmigrationLawBlogs

  3. Court Rules for DOL in H-1B Backpay Lawsuit

    By: Bruce Buchanan, Sebelist Buchanan Law

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    A New York federal judge, Edgardo Ramos, sided with the U.S. Department of Labor (DOL) in a lawsuit by private equity firm, Aleutian Capital Partners, arising out of an investigation into alleged violations of the H-1B visa program, the company liable for nearly $23,000 in back wages to two employees stating the DOLís Administrative Review Board (ARB) properly ruled. See Aleutian Capital Partners v. Perez (S. D. NY 2017).

    Judge Ramos rejected arguments by Aleutian that it was exempt from meeting the requirement for financial analyst and H-1B participant Shakir Gangjee because the company exceeded two annual wage requirements of $60,000 through supplementary bonuses, which were ďnondiscretionary paymentsĒ equal to 3 percent of Aleutianís revenue each month. The judge found the ARB determined Aleutian did not provide documentation showing its commitment to making the bonus payments to Gangjee.

    Furthermore, Judge Ramos agreed with the ARB that the bonus structure was insufficient because Gangjeeís wages were contingent on the revenues of Aleutian.

    ďThe ARBís interpretation is supported by the fact that Sec. 655.731(c)(4) requires employers seeking to make nondiscretionary payments to show Ďunequivocallyí that the required wage obligation was Ďmet for prior pay periodsí and Ďwill be met for each current or future pay period,Ē Judge Ramos wrote. ďIt is reasonable to conclude that such showing can be made only if the nondiscretionary payments are guaranteed and not contingent. Accordingly, the Court defers to the ARBís interpretation.Ē
  4. Letters of the Week: October 23 - October 29

  5. Is Anti-Immigrant Hostility Turning Europe Back Toward Fascism? And What About America? Roger Algase

    An October 22 POLITICO article warns about the dangerous consequences that the growing European right-wing nationalist movement, fueled by fear and animosity toward immigrants fleeing war, terror and dictatorship in the Middle East and Africa could have for Europe in the wake of the recent elections in Germany, Austria and the Czech Republic, where another right wing billionaire, Andrej Babis, has just been chosen as prime minister.

    http://www.politico.com/story/2017/1...onalism-244031

    The POLITICO story begins:

    "Czechs this weekend elected a new prime minister who heaps scorn on the European Union and says his country shouldn't have to accept a single refugee. Germany just sent a radical far-right party to parliament for the first time since the days of Adolf Hitler. And Austrians just gave the anti-immigrant Freedom Party their [sic] biggest share of the vote since 1999...

    Nationalist parties now have a toehold everywhere from Italy to Finland, raising fears the continent is backpedaling toward the kinds of policies that led to catastrophe in the first half of the last century."

    But Europe is not the only continent which may have good reason for concern about a turn toward the 20th Century fascist policies which ultimately led to WW2, the Holocaust and the deaths of 60 million people.

    Prejudice and animosity toward Middle Eastern, Latin American, Asian and other non-white immigrants also helped to elect a US president who is now undermining democratic institutions by attacking and trying to control the courts, the news media, the voting system, and any other entity or person standing in the way of his taking absolute power. Meanwhile, in the latest development, his attorney general, Jeff Sessions, darkly hints that he may try to jail opposing journalists, and that he might also try to prosecute Sanctuary City officials who oppose Trump's mass deportation agenda.

    Regarding Sessions threat to send journalists to jail, while Trump calls for the licenses of media which run negative stories about him to be "revoked", see:

    https://www.salon.com/2017/10/18/jef...g-journalists/

    Certainly, the following statement by a frail, 90-year old Harry Belafonte at a speech in Pittsburgh on October 20 may admittedly be somewhat extreme. Commenting on the election of Donald Trump. Belafonte reportedly said:

    "...the country made a mistake and I think the next mistake might very well be the gas chamber and what happened to the Jews [under] Hitler is not too far from our door."

    https://www.theguardian.com/us-news/...overcome-trump

    But behind the obvious exaggeration (one hopes) of the above statement (and the fact that Trump is targeting Muslims, not Jews) there is a clear and unmistakable warning: Just as exploiting fear and prejudice against immigrants could be leading toward a resurgence of fascism in Europe, anti-immigrant sentiment in America could be turning this country in the direction of dictatorship here at home.

    Roger Algase
    Attorney at Law
    algaselex@gmail.com

    Updated 10-22-2017 at 11:21 AM by ImmigrationLawBlogs

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