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  1. Employer’s Reverifications Violate NLRA

    By: Bruce Buchanan, Sebelist Buchanan Law
    Click image for larger version. 

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    As an immigration attorney and former NLRB attorney, I am always fascinated when immigration law and immigration law overlap. That was the case in Cinelease, Inc., JD(SF)-33-77 (July 2017), where an Administrative Law Judge for the National Labor Relations Board (NLRB) found an employer, Cinelease, to have violated Sections 8 (a)(1) and (3) of the National Labor Relations Act (NLRA) by actions related to reverifying employees’ work authorization documents.

    The issue of reverification arose after the Teamsters Union filed a petition with the NLRB seeking an election of the company’s warehouse employees. Within two weeks, Cinelease’s operations manager had a meeting with an employee and told how him that his work permit had expired. The employer said they learned of this information from another worker.

    Because of this information, Cinelease contacted their legal counsel, who advised to conduct an internal I-9 audit to verify all employees’ documentation. At that time, Cinelease did not have a procedure in place to conduct such an audit and had not been reverifying immigration documentation. Their immigration counsel gave Cinelease instructions from on how to conduct the audit although Cinelease’s managers and legal counsel could not agree on whether they were told to not re-verify green cards.

    Pursuant to the instructions, Cinelease’s HR manager reviewed all the employees’ I-9 forms and made a list of those employees with expired documentation. The list did not differentiate between expired green cards and expired work permits. (An employee’s green card or permanent residence does not end at the end of the employee’s green card and it is unlawful, under the Immigration & Nationality Act (INA), for an employer to reverify an employee’s green card status.)

    The company-wide audit showed 17 employees out of 165 employees had “expired work papers; seven of the 17 employees were warehouse employees. Next, Cinelease began calling in the 17 employees one by one and informing them they had expired work papers and to provide up to date documentation. Some of the employees had not provided updated work permits to Cinelease on a regular basis and only when Cinelease haphazardly requested such. One employee, Hugo Martinez, was unable to provide a current work permit; thus, Cinelease suspended him until December 18, 2016, one day after the NLRB conducted union election.

    Following reverifications of the employees’ documentation, attendance at union meetings declined. The union election ended at a tie. Additionally, the day after the election, suspended employee Martinez was told by Cinelease management that he could take more time to get new documentation.

    In concluding the requests to reverify employees’ employment authorization documents were a violation of Section 8 (a)(1) of the NLRA, the ALJ stated that normally this would not be a violation of the NLRA; rather, it is required under immigration law for work permits. However, the NLRB has previously found this action is unlawful if conducted in retaliation for union activity.

    Thus, the question is whether Cinelease’s actions were retaliatory. As the ALJ stated: “It is perfectly clear the documentation was not requested as part of the Respondent’s ordinary practice of rechecking work authorizations. Rather, such large-scale rechecks of work authorizations was unprecedented.

    Cinelease argued it was just attempting to comply with immigration law. However, Cinelease also rechecked permanent residents, which under immigration law is prohibited. Even for permanent residents, Cinelease requested reverification of their cards, including those whose green cards had not expired. Ultimately, the ALJ found the reverifications were retaliatory and motivated by anger at the union campaign and Martinez for his union support. Thus, they violated the NLRA.

    The ALJ also found the suspension of Martinez was unlawful. This is interesting in that under immigration law, Cinelease took the correct action when it discovered his unauthorized status. But it did it for retaliatory reasons; thus, the ALJ found a violation. For a remedy, Martinez must provide proof of work authorization before Cinelease can put him back on the payroll.

    It will be interesting to see if Cinelease appeals the ALJ’s decision. I will keep you informed.
  2. WHAT IS GOING ON WITH THE CONFIRMATION OF THE NEW USCIS DIRECTOR?

    by , 07-31-2017 at 10:56 AM (Chris Musillo on Nurse and Allied Health Immigration)
    by Chris Musillo

    In April Pres. Trump nominated Lee Francis Cissna to be the Director of the USCIS. USCIS is a sub-agency of the Department of Homeland Security. USCIS is tasked with processing immigration applications and petitions. The Director normally reports directly to the Secretary of the Department of Homeland Security. Because it is such an important position, any nomination for Director requires confirmation by the Senate.

    Three months have now passed since the President’s nomination of Mr. Cissna. Although the President has complained loudly about Senate Democrats holding up confirmations, that does not seem to be the case with Mr. Cissna's nomination.

    In mid-May, Pro Publica reported that Mr. Cissna had spent much of the last few years ghost-writing letters on behalf of Sen. Grassley (R-IA). These letters were aimed at dismantling much of Pres. Obama’s immigration policies. On May 31, Mr. Cissna testified in front of the Senate Judiciary Committee. Three hundred immigration stakeholders have since pushed the administration to withdraw Mr. Cissna’s nomination.

    Why did Sen. Tills delay Cissna's confirmation? Sen. Tillis wanted an increase of H-2B visas, which are temporary visas used in seasonal occupations. North Carolina uses more H-2B visas than 47 other states, trailing only Texas and Colorado. In mid-July, the President caved into Sen. Tillis’ demands and released an additional 15,000 H-2B visas. Only then did Sen. Tillis agree to lift his hold on the confirmation.

    Yet Mr. Cissna’s confirmation continues to sit. Right-wing media, who are fans of Mr. Cissna’s views, are ramping up the pressure on the GOP Senate to move forward.

    Because the Cissna nomination is still stuck, questions remain: Is Mr. Cissna going to be confirmed before the August recess? Is his delay more about him or more about the Senate’s packed schedule? Will the forthcoming DHS Secretary withdraw Mr. Cissna and want to appoint his own candidate? We should know a lot between now and the recess.


    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

    Updated 07-31-2017 at 05:38 PM by CMusillo

  3. Letters of the Week: July 31 - August 6

  4. It's Not Just Trump. America's Immigration System Has Been in Conflict With Basic Human Rights for a Very Long Time. Roger Algase

    In the "Donald Trump Era" it is easy to assume that America's 45th president, who has defined his immigration policies to date by extreme measures against vulnerable minority immigrants - excluding almost 200 million potential immigrants or visitors from six Muslim countries because of their nationality - which happens to be co-terminus with their religion, as less than one percent of the population of these countries belong any other faith - and ramping up arrests, mass deportation and expedited removal of mainly Latin American immigrants as fast as he can, while preparing to build a Wall of hatred and humiliation against Mexicans in particular along our Southern border, is in a class by himself when it comes to animosity toward minority immigrants.

    Even apart from his actions against non-European immigrants, Trump's attempts to demonize various minority immigrant groups as "criminals" "rapists" "drug dealers", "gang members" and - his "Trump" card, "terrorists" and "haters" of America, who, according to his most recent speeches in Ohio and New York State, deserve "rough" treatment from immigration and police officers, including possibly having their heads cracked open, is causing many people to think that he has sunk to new depths of hatred and prejudice against non-white immigrants.

    Therefore, a reminder from a writer who is well versed in the history of our immigration system that abuses against the basic human rights of unpopular immigrant groups are not new, but that they are built into our legal system in large part through the pernicious "plenary power" doctrine which the Supreme Court first developed in the era of the infamous Chinese and other Asian exclusion laws beginning in the 1880's; and that Donald Trump is not the cause of this abusive system but its result, is timely and well worth serious consideration.

    The writer I am referring to is Anis Shivani, in his new series in Salon.com dated July 30 and entitled:

    A radical new approach to the immigration "problem": Beyond left and right, Trumpism and neoliberalism - Part one

    http://www.salon.com/2017/07/30/a-ra...lism-part-one/

    Shivani introduces his viewpoint as follows:

    "Our federal immigration policy began about 125 years ago in an exclusivist and racist vein, targeting the Chinese, then the Japanese and other Asians, and after that southern and eastern Europeans, before moving on to Mexicans as the prime targets of exclusion for about 100 years, where we remain today with the recent addition of Muslims and Arabs as special targets."

    He continues, in a paragraph with direct relevance to the legal battle taking place over Trump's Muslim ban executive order which is currently awaiting further action by the Supreme Court:

    "The judicial branch has historically granted the executive great leeway to do as it wishes on immigration, considering it (quite wrongly, I think) an area of foreign policy passing under what's known as the 'plenary power' doctrine. Though there have been times, in periods of liberal ascendancy, when there has been pushback against plenary power, the idea is inherently connected to the way federal immigration policy came into being and was conceptualized in the early going, which renders it difficult to get away from. If the judicial branch, in the wake of the Trump administration's expected assault on immigration, takes a restraining posture, it would actually be a deviance from, rather than a continuation of, historical precedence."

    Shivani then goes right to the heart of his contention:

    "We have come to an impasse at last, after 125 years of misguided federal immigration policy, where there is no way out of our current moral panic, but to recognize the immigration crisis as a human rights catastrophe of historic proportions, ranking up there with the greatest known tragedies toward mass populations, and to address it as such rather than resting hope in any of the so-called reform measures that do not get to the bottom of the human rights tragedy."

    Calling America's current turn toward mass exclusion and mass deportation of unpopular Muslim, Latino and other non-white minorities one of the "greatest known tragedies toward mass populations" may admittedly seem like hyperbole and exaggeration to anyone familiar with the Holocaust and Rwanda genocide, but one does not have to agree with Shivani's exact language in order to appreciate his point.

    This point, quite clearly, is that amid all the discussion of immigration as a security issue, a law enforcement issue, an economic issue, or even in the words of Trump's recent bombastic "Europeans ueber alles" immigration speech in Warsaw, a "cultural" issue or one involving differences of "civilizations", the basic reality of immigration and immigration law and policy is that it deals with human beings (and yes, immigrants, even when charged with crime, are human beings, Mr. President, not "animals" as per Trump's July 28 speech in Brentwood, New York).

    All human beings have certain basic rights, including immigrants. Shivani writes eloquently and in detail about what these rights are, and how our immigration laws should afford them greater recognition.

    I will continue my discussion of Shivani's views on this topic in forthcoming comments.
    __________________________________
    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 obtain work visas and green cards.

    Roger's practice focuses primarily on H-1B (specialty occupation) and O-1 (extraordinary ability) work permits, and on green cards through labor certification (PERM) and through opposite sex or same sex marriage.

    Roger's email address is algaselex@gmail.com


    Updated 07-30-2017 at 06:17 PM by ImmigrationLawBlogs

  5. In Long Island Speech, Trump Glorifies Violence by Immigration Officers, Recalling Eras of European Fascism and US Segregation. Roger Algase

    In a July 28 Long Island NY speech to police officers that recalls not only his incitement to his followers to "rough up" protesters at his own campaign rallies, but also the glorification of violence against racial minorities during both the Nazi era and era of US segregation.

    See, University of Knoxville (TN) Sociology Professor Victor Ray, writing in Newsweek (March 29):

    Trump Coalition Threatens A Return To The Jim Crow Era.

    http://newsweek.com/trump-coalition-...row-era-576295

    Donald Trump, in a speech that was ostensibly aimed against the violent Salvadorean-based MS-13 gang, but also included attacks against all, mainly Latino, unauthorized immigrants, including the overwhelming majority who do not have criminal records of any kind, had the following "praise" for US immigration officers, as quoted by the UK's Daily Mail:

    "They're [immigration agents] rough. I don't want to be - say it because they'll say that's not politically correct...You're not allowed to have rough people doing this kind of work...Just like they don't want to have rich people at the head of Treasury, okay?

    "Like, I want a rich guy at the head of Treasury, right? Right?"

    http://www.dailymail.co.uk/news/arti...crackdown.html

    The obvious meaning, which no child over the age of 4 could fail to understand, was that Trump wants "rough" people to serve as immigration agents.

    In view of the president's admonition in the same speech to local police officers to avoid doing anything to protect the heads of arrested Central American gang members from injury while arresting them, and his support for "roughing up" of protesters at his rallies, and the use of torture, during his presidential campaign, it is clear that the United States now has a chief executive who revels in the use of violence as a method of governing, just as Germany had in the case of its chief executive during the 1930's and first half of the 1940's.

    In a different, but not entirely unrelated development, POLITICO reports on July 28 that Kris Kobach, who has a long history of engaging in a different form of "violence", i.e. though legislation which has to a large extent been thrown out by the courts, against the rights immigrants to protect themselves against police state mass deportation policies, as well as against the rights of minority Americans to vote, may be under consideration as the next Homeland Security chief, replacing John Kelly who has just been moved to White House Chief of Staff.

    http://www.politico.com/story/2017/0...essions-241118

    Such an appointment, if it takes place and passes Senate confirmation, would be yet another loud and clear message from this administration that neither minority immigrants nor minority American citizens are welcome, or can expect to have any protection for their basic rights, including protection against police brutality, in Donald Trump's America.

    For a comprehensive analysis of Kobach's atrocious record of trying to turn hatred of non-white immigrant and US citizen minorities into legal enactments, or as the ancient Roman poet Lucan wrote 2,000 years ago during the time of the emperor Nero:

    iusque datum sceleri ("bestowing legality on infamy")

    see: The New York Times Magazine (June 13):

    The Man Behind Trump's Voter Fraud Obsession

    https://www.nytimes.com/2017/06/13/m...obsession.html
    __________________________________
    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 obtain work visas and green cards.

    Roger's practice focuses primarily on H-1B (specialty occupation) and O-1 (extraordinary ability) work permits, and on green cards through labor certification (PERM), and opposite sex or same sex marriage.

    Roger's email address is algaselex@gmail.com

    Updated 07-30-2017 at 04:19 PM by ImmigrationLawBlogs

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