Defense Counsel Journal

Conning the Newsletters: What's New in Immigration? A Few Thoughts for 2016

Volume 83, No. 3

February 07, 2020

Employment Law

Gladstone_Michael_2020_sized Michael H. Gladstone

Michael H. Gladstone

Mike Gladstone is a Director in McCandlish Holton PC’s Litigation Practice Group, where he counsels clients in civil litigation and arbitration involving commercial, tort, immigration, and employment disputes. He has extensive trial experience in the state and federal courts in Virginia, Washington, D.C., Maryland and New York. He recently served as co-lead counsel in the successful trial defense of the Virginia uranium mining moratorium against a constitutional takings challenge. He has spoken and written on the implications of the GDPR for United States businesses and litigation. Mike is a member of the IADC, and its employment law and international practice groups, and the American Immigration Lawyers Association.

This article originally appeared in the April 2016 Employment Law Committee newsletter.

I.  What is the status of the President's immigration programs, and how do they affect employers?

In late November, 2014, President Obama announced several major initiatives intended to fix a number of problems with the current immigration system and promote a more predictable system going forward. The most publicized of the initiatives—deferral of removal of illegal parents of United States citizen children—became the target of lawsuits to prevent implementation. The significance of this measure, should it ultimately become effective, obliges employers to keep abreast of the status of this initiative, as well as other related measures. Several of the significant measures are addressed here.

A. Deferred authorization for spouses of H-1B visa holders

H-1B is a common work visa. Dependent spouses and children hold H-4 status, but are not allowed to work. As of May 26, 2015, H-4 spouses (but not H-4 children) may apply for and receive work authorization. Work will be authorized where either (1) the H-1B principal has an approved Immigrant Petition (1–140) or (2) the H-1B principal has received an H-1B extension based on a permanent labor certification application or an I-140 petition already pending for at least one year. This is a significant change from past practice and brings the H-1B visa into line with other oft-used employment based visas by adding H-4 spouses to the group eligible to obtain work authorization. Employers who alert their H-1B employees to this opportunity will generate great good will.

B. Deferred Action for Child Arrivals (“DACA”)

DACA was created to stem the removal of undocumented individuals below a certain age brought here as children who effectively grew up in the United States. It does not create a ‘lawful status' for the participants but instead, provides immediate relief from the fear of deportation and allows for work authorization. The DACA program, first implemented in 2012, was to be expanded by the elimination of the upper age limit (birth date cut off of June 15, 1981 eliminated) and by shortening the required continuous U.S. residence period from June 15, 2007, to January 1, 2010. Additionally, work authorization would be issued for three years, instead of two years. It was anticipated that applications under the new rules would be accepted sometime in February 2015. The expansion of this program, however, was enjoined in the same proceeding which halted implementation of the Deferred Action for Parental Accountability, discussed next. If eventually implemented, employers should know of this initiative since by expanding DACA's coverage it could affect employee's children.

C. Deferred Action for Parental Accountability (“DAPA”)

This brand new program, which mimics DACA, was created to benefit the parents of U.S. citizens or Lawful Permanent Residents (green card holders), where the parent is in the U.S. illegally. It is intended to address the problem of U.S. citizen or permanent resident children being stranded in the U.S., or being de facto deported when their parents are removed due to illegal presence. Parents with good behavior and who have continuously resided in the U.S. since January 1, 2010, and were out of status as of November 20, 2014, would be eligible to apply for deferred action, relieving them from anxiety over removal. This initiative provides for employment authorization, which would be issued for three (3) years. At the time of announcement, it was anticipated that applications for this status would be accepted in May 2015. Before the injunction, substantial steps were taken to prepare for implementation of the DAPA initiative including planning for establishment of a 1,000 employee Citizenship and Immigration Services service center devoted to processing the expected millions of DAPA applications.

In a ruling announced on February 16, 2015, (State of Texas, et. al. v. United States of America, et. al., Case 1:14-cv-00254) Judge Andrew S. Hanen, of the USDC, Southern District of Texas at Brownsville, Texas, entered a temporary injunction enjoining the implementation of the DAPA program described above, as well as the three primary expansions DACA also announced in November, 2014. Suit was brought by 26 States seeking injunctive relief alleging direct damage, if the DACA expansion and DAPA initiatives were implemented. The decision was announced on the eve of implementation of the DACA expansions. In November 2015, the injunction was sustained by the 5th U.S. Circuit Court of Appeals, and appealed by the Obama administration. In January 2016, the case was accepted for review by the U.S. Supreme Court. On March 1, 2016, the government filed its opening brief on appeal. A great deal of speculation has arisen as to how the death of Justice Scalia will affect the Court's consideration of this case.

This case is significant because of the large number of people affected by the initiative. The prospect of no-removal and work authorization for millions is a development employers cannot ignore.

D. STEM Optional Practical Training

Under existing law, (“OPT”) (Optional Practical Training), foreign students in F-1 status may work for up to 12 months after graduation. STEM11 “STEM” refers to science, technology, engineering or math. graduates were eligible to receive an additional 17 months for a total of 29 months of OPT. The President proposed increasing the 17-month extension period for STEM graduates and expanding the list of STEM fields. On March 11, 2016, USCIS announced implementation of important changes for STEM students, including the enlargement of the STEM extension period from 17 to 24 months.

II. Avoiding national origin discrimination: A refresher on interviewing foreign nationals for employment

Considering the potential, just discussed for a substantial number of newly work- authorized individuals to enter the job market, a review of the issues attendant to interviewing foreign nationals for employment, in particular, avoiding national origin discrimination, is appropriate. The laws that cause the most confusion in the recruitment and hiring of foreign nationals, including international students, are:

  • The Immigration Reform and Control Act of 1986 (“IRCA”). IRCA requires that employers only hire people who are authorized to work in the United States. Using the I-9 process, employers must verify an employee's identity and authorization to work in conjunction with the hiring process. It is therefore lawful for an employer to inquire about an applicant's authorization to work prior to, or during an employment interview.
  • Title VII of the Civil Rights Act (Title VII). Title VII prohibits discrimination based on national origin, religion, or other protected classes of individuals. IRCA also protects workers against discrimination based on citizenship status. National origin discrimination occurs when an individual is denied an employment opportunity or is treated differently because of his or her birthplace, ancestry, cultural background, or heritage. The trouble starts when an employer inquires directly into an applicant's national origin (i.e. “Are you from India?” or “You must be from South Africa”). Asking such questions can give rise to claims that a decision not to offer a job was based on the national origin of the individual.

A couple of practical questions follow from these laws: How can an employer determine if a student is authorized to work, or if the student or EAD holder will require visa sponsorship, without asking improper questions regarding national origin, citizenship, and so forth? Also, what if an employer only wants to interview or hire U.S. citizens?

Some employers have adopted rules providing that they will only interview or hire U.S. citizens. As a general rule, an employer cannot legally limit job offers to “U.S. citizens only.” An employer may require U.S. citizenship for a particular job only if U.S. citizenship is required to comply with a law, regulation, or executive order; is required by a federal, state, or local government contract; or, the U.S. Attorney General determines that the citizenship requirement is essential for the employer to do business with an agency or department of the federal, state, or local government.

These exceptions, by their very terms, are extremely limited in scope. An employer cannot, thus, impose a simple “citizens only” policy unless the job fits into one of the referenced categories. Even in those limited cases where a “citizens only” policy may be allowed, the citizenship requirement must be related to a specific job that has been identified in the government contract, by law, or by the U.S. Attorney General. For example, an employer that is a U.S. Department of Defense contractor cannot require U.S. citizenship for all of its jobs relating to the contract if the contract identifies only certain jobs as requiring U.S. citizenship.

As a result, employers should not ask a job applicant about his or her citizenship during a job interview, unless the employer is confident that the job falls into one of the lawful bases for requiring U.S. citizen applicants only. Questions, however, concerning an applicant's authorization to work are appropriate and lawful. It is perfectly lawful for an employer to refuse to interview or hire an international student in F-1 or J-1 status who will need future visa sponsorship in order to be authorized to work in the U.S.

Many students in F-1 or J-1 status (two very common student visas) are authorized to work after graduation using F-1 Optional Practical Training or J-1 academic training. Students will eventually require sponsorship for work visas after expiration of their training period. An employer does not violate the law by refusing to sponsor an international student for an H-1B or other temporary work visa, or for permanent residence in the United States. Employers, therefore, do not have to interview, or hire foreign students in F-1 or J-1 status, if the employer does not wish to sponsor an employee for a work visa in the future. Moreover, if an employer extends an offer to the student, and subsequently learns the student will require visa sponsorship, the employer can lawfully revoke the offer.

However, by adopting a policy of refusing to interview or sponsor F-1 or J-1 students for a work visa (such as H-1B), employers may be excluding a significant pool of talented candidates. Employers may adopt these policies because they lack information of the visa options available to allow the foreign students to continue working after graduation, or the likely duration of work authorization which relies on prosecutorial deference. Regardless of whether the employer wishes to interview F-1 or J-1 students, or DACA, or future DAPA beneficiaries, all employers must take care not to violate IRCA or Title VII in their interviewing process.

Lawful questions an employer may ask on job applications or interviews can determine work eligibility and provide insight into an authorization's duration, without asking about national origin, and should be asked of all applicants, not just “foreign” ones. Some examples of such questions are:

  • Are you currently authorized to work in the United States on a full-time basis for any employer without restriction?
  • Will you now or in the near future require employment visa sponsorship (i.e., H-1B visa)?
  • If the applicant answers yes (that he or she will require visa sponsorship), the employer may then ask what the applicant's current employment eligibility is based on, what the applicant's immigration status is, and how long it will last.

If the applicant answers that he or she is authorized to work, and will not require visa sponsorship, no further questioning about employment authorization, visa status, and so forth, is permissible.

The questions outlined above can be stated on job applications, even prior to interview, and will allow employers to determine if an applicant will require work visa sponsorship. Employers can then determine if they want to pursue the applicant further. The recruiter should ask all prospects the same questions, not just those who may “look” or “sound” foreign. Selectively questioning and advising candidates of work authorization requirements could raise questions about whether the employer is treating applicants unfairly based upon national origin. An employer should not ask the applicant's country of origin or “native language,” or differentiate among applicants based upon their last name, color, or accent. Similarly, employers should not have a policy that disproportionately impacts employees of certain nationalities, e.g., for sponsorship or employment.

III. H-1B season is in full swing!

As the economy has improved over the last several years, the squeeze on available H-1B visas has returned with a vengeance. H-1B is the most popular work visa in the U.S. It is available to individuals who have at least a 4 year bachelor's degree (or the foreign equivalent) and who will work in a job that requires at least that type of degree to perform. The annual cap on H-1B visas remains at 85,000, which is a mix of bachelor's and advanced degree candidates. The quota is released every year on October 1, and every year on October 1, all H-1B's are already taken because of “pre-filings.” That is because employers may submit H-1B petitions as early as April 1 for the October 1 quota. It is anticipated that the quota will be met through the filings received by USCIS on April 1, and that, as in recent years, applications will exceed available visas by as much as two to one or more.

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