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Orange County Immigration & Naturalization Law Blog

Sudden immigration policy change affects tech workers

Two representatives from California have criticized a recent decision by the State Department to change an immigration policy. The sudden and unexplained policy revision left an estimated 20,000 to 30,000 immigrants unable to apply for green cards as they had expected. According to U.S. Reps. Mike Honda and Zoe Lofgren, the revision has undermined predictability and stability in the immigration system.

A majority of the immigrants who were affected by the policy change are originally from China and India. Many of these immigrants work in the medical and tech fields and hold advanced degrees. On Sept. 9, a bulletin issued by the State Department stated that the affected immigrants would be able to apply for permanent residency on Oct. 1. Then on Sept. 25, a revised bulletin was issued that informed the immigrants they would not be able to apply but gave no information about when they could apply in the future.

DOL awards H-1B workers back pay from U.S. employer, owner

Two H-1B employees with H-1B visas have been awarded more than $291,000 in back pay, application fees and interest after their employer failed to allow them to work and to pay them. This ruling is a clear reminder to California employers and employees alike that immigrant workers with H-1B visas must be employed and receive payment.

According to the case which went to the U.S. Department of Labor, a company sponsored the two workers for H-1B visas but did not employ or pay them after they made themselves available for work. After the judge determined that the workers were benched, the company and its owner were ordered to pay the workers' wages for as long as their work visas are valid. In addition, the company and its owner must repay the immigration application fees that each worker provided as well as pre- and post-judgment interest.

High costs and language tests can be barriers to citizenship

California is a popular destination for Mexican immigrants who have received a green card and are able to legally live and work in the United States. Studies have found that the overwhelming majority of these immigrants hope to go on to become naturalized American citizens, but many of them never actually go on to take this step. Government data reveals that approximately 8.8 million green card holders have not applied for naturalization, and this is often blamed on the barriers that have been placed in their way.

The high costs associated with the naturalization process are often cited as the main factor preventing permanent residents from applying for naturalization. The cost of submitting a naturalization application is currently $680, and this is often beyond the means of immigrant families struggling to pay their bills. There is also no family payment cap in place, which means that each member of a family hoping for naturalization must pay the fee. These fees are also nonrefundable should the application be denied.

Identifying foreign workers that are eligible for U.S. visas

Employers in California that are interested in hiring non-U.S. citizens for job positions in the United States will have to consider each candidate's visa eligibility. Identifying candidates who are more likely to be approved for work visas can save a company's human resources department a lot of time and expense.

The first thing that should be considered before hiring a foreign-born job candidate is the person's criminal history and previous U.S. immigration history. Any criminal history at all could delay visa processing, and criminal convictions could make a person permanently inadmissible to the U.S. If a job candidate has a record of U.S. visa denials and refusals of entry, a new visa application is likely to be heavily scrutinized. People who did not leave the U.S. once a previous visa had expired could be barred from reentering the country for up to 10 years.

Other options for employment immigration besides H-1B visas

As many California businesses and foreign employees know, the government limits the number of H-1B visas it will approve each year. This year, approximately 148,000 H-1B applications were denied, leaving some believing they didn't have another alternative. There are several alternate types of employment visas that may be an option, however.

Through the North American Free Trade Agreement, Canadian and Mexican workers who qualify may be able to come to the country under trade NAFTA, or TN, visas. Canadians are allowed to apply at the U.S. port of entry, while Mexicans are required to apply at a U.S. Consulate. These visas are good for three years and then may be renewed for an additional three-year period.

Furor over anchor babies at odds with immigration laws

Most California residents are likely aware that immigration has become a contentious issue in the run-up to the 2016 presidential election, and some candidates have called for changes in the law to prevent citizenship being granted automatically to the children of undocumented immigrants born in the United States. The political debate on this issue may foster a belief that having what the media refers to as an anchor baby is a way for immigrants to achieve legal residence in America quickly and easily, but immigration laws give few advantages to the parents of these children.

The parents of such a child may not petition to become citizens themselves until their child has reached the age of 21. They must also have spent at least 10 years living overseas before their petition will be considered if they spent a year or longer living illegally in the United States. There are exceptions to this 10-year rule granted to the children or spouses of U.S. citizens, but undocumented immigrants rarely qualify for them.

Trump plan challenges birthright citizenship

The dean of a California law school says the issue of birthright citizenship has been settled law since at least March 28, 1898, when the U.S. Supreme Court ruled on the case of a Chinese American who had been born in 1873 in San Francisco. The Court noted that its interpretation of the meaning of the 14th Amendment depends on the adoption of Anglo-American law dating back to 1608, long before the establishment of the nation. In a nutshell, any person born here is a U.S. citizen, according to the dean.

The Supreme Court case began in 1895, when the then 22-year-old man was denied re-entry to the United States following a trip to China, where much of his family still lived. It was a time of significant anti-Chinese feeling, just nine years after the passage of the Chinese Exclusion Act, and though the Court recognized the man's rights as a U.S. citizen, he was forced to live and raise his family in China.

California children can benefit from parents' new ciitzen status

California parents may be interested to learn that their own quests for citizenship can have direct impacts on their childrens' status. There were already multiple avenues by which children who were under the age of 18 on Feb. 18, 2001 could obtain citizenship. Under today's more-lenient guidelines, however, many other children may be eligible for citizenship based on their parent's naturalization.

Derivative rules grant automatic U.S. citizenship to children under a number of conditions when one of their parents becomes naturalized. For instance, if the other parent earned their citizenship before the child's 18th birthday or was deceased, a child may be granted citizenship. Children whose parents were unmarried at the time of their births may be granted citizenship if their mother was the naturalized parent, but those whose fathers naturalized are not afforded the same right.

Updates to H-1B amendments for workplace changes

A recent clarification of employment visa requirements may have left some California employers scrambling to meet an August 19 deadline. USCIS determined in April that employers are required to file an amended H-1B petition if a worker under such a visa will move to a different geographical work location. Although a situation arose involving one worker and their employer, USCIS indicated that all employers were responsible for updating their H-1B petitions if workers had been relocated outside of the same metropolitan areas initially used on the petitions.

Initially, USCIS required that amendments would be required in all cases involving relocated workers. However, the deadline has been extended, allowing employers to comply on or before Jan. 15, 2016. The agency has also now indicated that it will not generally seek denials of visas or revocations in instances of relocation that occurred prior to the April 9 decision, leaving employers in such cases with the option of not amending their H-1B petitions. At the same time, USCIS will not cancel actions that are already in progress because of relocation activities that preceded the decision.

California representative proposes EB-6 visa category

A California member of the U.S. House of Representatives is one of two sponsors of a bill that would modify the rules and regulations surrounding investment visas. The legislation, termed the Entrepreneurial Business Creating Jobs Act, seeks to add an EB-6 category for foreign individuals who are able to raise money for a business by securing investors.

A bill before the Senate, by contrast, would largely reauthorize the current immigration program, with permanent visa categories EB-1 through EB-5. An individual who can make an investment of at least $500,000 in a project that will create at least 10 U.S. jobs can apply for permanent residency, also known as a green card, under category EB-5.

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