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Consequences of Improperly Terminating H-1B Employee

An employer may not validly terminate an H-1B employee by simply notifying him or her that the employment has ended. An accounting firm was reminded of this rule the hard way in a recent case decided by an Administrative Law Judge in San Francisco.

The employer in that case filed an H-1B petition for a tax accountant for employment beginning October 1, 2008. The employee had been working for the firm on optional practical training status under his F1 visa.

In the H-1B petition, the beneficiary was listed as a full-time employee working 40 hours a week. The USCIS approved the petition, but six weeks before the start date, he was terminated from the job. Before his termination, the employee was paid $25.30 per hour.

A bona fide termination of an H-1B worker requires a showing by the employer of three things. First, the employer must give notice to the worker. Second, it must give notice to the Immigration and Customs Enforcement (ICE) so that the I-129 petition can be cancelled. Third, it must pay for the worker’s transportation back home.

Failure to prove every element of a bona fide termination carries with it the harsh consequence of making the employer liable to pay the required wage rate for the entire period of authorized employment.

The employer failed to meet the second and third elements. It did not inform the ICE that the H-1B employment would not materialize after all. The H-1B petition was revoked more than two years after the employee was fired when the employer finally reported it to the USCIS in 2010. The employer also did not pay for the worker’s return flight to his home country.

The administrative law judge ordered the employer to pay back wages for a period of almost three full years, with pre- and post-judgment interest. It was further ordered to reimburse the worker for the legal fees incurred in the filing of the H-1B petition, which by law should be borne by the employer.

The decision was careful to note that H-1B employment does not result in an indentured servitude. The employer may terminate the worker’s H-1B employment at any time, and the H-1B worker is likewise free to leave his or her employment. Regardless of which party ends the relationship however, there will be consequences to such termination. In this case, to be relieved of its wage and other obligations, the employer must have complied with the legal requirements for a bona fide termination.

Interestingly, the judge even found that the worker’s earnings while he worked at another tax firm after he was fired by the employer should not be deducted from whatever amount is ordered against it. The judge explained that the rule of mitigation of damages did not apply to the action which was based on immigration law and regulations, and that the worker did not earn the income while on a voluntary absence from the employer.

This case is a sharp reminder to any employer that until the immigration authorities are informed of an H-1B termination, it remains liable for the H-1B worker’s wages and benefits. The inconvenience of having to mail a notice to the ICE and paying several hundred dollars for a terminated employee’s plane fare certainly seems negligible compared to the liability that could very easily be incurred by employers who are unaware of the rule on bona fide termination.

Waiving Inadmissibility for Nonimmigrants

An alien may be barred from reentering the U.S. if he or she had been unlawfully present, committed a misrepresentation on a visa application, or has a criminal conviction.

One way to overcome these and other grounds of inadmissibility is the general waiver found under section 212(d)(3) of the Immigration and Nationality Act.

This type of waiver is available to nonimmigrants or those seeking to enter the U.S. for a temporary period. Examples are visitors for business or pleasure, students, H-1B workers and other temporary workers.

Unlike most waivers for immigrant visa applications, the 212(d)(3) waiver may be used for many inadmissibility grounds, including health reasons, drug offenses, public charge grounds, immigration violations, and even certain types of involvement in terrorist activities.

This waiver is not available to those who are inadmissible due to terrorism or national security-related grounds or foreign policy grounds. It may also be denied to K-visa applicants who are ineligible for an immigrant visa waiver, and those who are not qualified for admission under the category applied for. For example, an applicant for a visitor (B1/B2) visa may not use this waiver to overcome a negative finding of immigrant intent.

An application for this waiver may be made at a U.S. consulate at the same time that the visa application is submitted. If applied for at the consulate, there is no separate fee for the waiver. The consular officer reviews the waiver application and forwards it to the Admissibility Review Officer of the Customs and Border Protection (CBP) if the waiver is granted. In case of a denial by the ARO, the applicant may request an advisory opinion from the Department of State.

An alien may also apply for the waiver at the port of entry by presenting the CBP officer with a Form I-192 (Application for Advance Permission to Enter as Nonimmigrant) and the filing fee.

Consular officers have wide discretion when recommending the grant of this type of waiver. The criteria to be followed were laid down in the leading case of Matter of Hranka, decided by the Board of Immigration Appeals in 1978. Under the Hranka standard, three factors must be balanced: the risk of harm in admitting the applicant, the seriousness of the acts that caused the inadmissibility, and the importance of the applicant’s reason for seeking entry.

The Foreign Affairs Manual instructs consular officers to consider the following factors, which mirror those in Hranka: the recency and seriousness of the activity or condition causing the ineligibility, the reasons for the proposed travel to the United States, and the positive or negative effect, if any, of the planned travel on the public interests of the United States.

Consular officers are reminded in the FAM that they may recommend waivers for any legitimate purpose such as family visit, medical treatment, business conferences, tourism and other purposes. The applicant need not have a qualifying family relationship nor show humanitarian or exceptional circumstances.

The 212(d)(3) waiver, while it could be the broadest type of waiver available, remains discretionary. Aliens interested in applying for this waiver in conjunction with their nonimmigrant visa application must ensure that their waiver packet meets the standard of eligibility.

Changes Urged in Processing Deferred Action Requests

Deferred action is a form of relief granted to aliens for humanitarian reasons and which allows them to temporarily remain in the United States.

This type of relief is usually given to those who can demonstrate compelling circumstances and whose removal is not a priority of the government. It may be requested as a pre-adjudication relief by an applicant for an immigration benefit, such as widows of U.S. citizens and qualified victims of a crime or abuse. It may also be requested by individuals for humanitarian concerns whether or not they have a pending immigration petition or application. Examples of this latter type are those filed by individuals with extreme medical cases.

Among the factors that the USCIS considers are the likelihood of the alien’s removal, the presence of sympathetic factors, likelihood of a large amount of adverse publicity given the sympathetic factors, desirability of the alien’s continued presence for law enforcement purposes, and whether the individual is a member of a class that is given high enforcement priority, such as terrorists and drug traffickers.

Deferred action is a discretionary administrative act. It is not subject to judicial review and neither may it be granted by an immigration judge. The request is reviewed by the district director who makes a recommendation to the regional director, who in turn issues the decision.

Deferred action is not and does not lead to permanent resident status. However, the individual requesting it may apply for employment authorization. If granted, deferred action is usually valid for one to two years.

A recent analysis by the Citizenship and Immigration Services Ombudsman of deferred action requests revealed that there is currently no standardized national procedure for the handling of these requests. The public, according to the Ombudsman, also does not have clear and consistent information on the requirements for submitting a request and on what to expect after submission.

The review found that most local offices follow an informal standard process, and that there is no nationwide system for acknowledging receipt of these requests. Typically, an application for deferred action is made by submitting a request to a local USCIS office in person or by mail, but there is no standardized application form. There is currently no fee charged for making this request.

The Ombudsman also found that there is no mechanism to keep adjudications within a certain timeframe and that decisions have been issued from a range of two weeks to 60 days, while some requests remained indefinitely pending. The study showed that some offices do not issue the template letter confirming receipt of the request, while some offices do not issue any written acknowledgement at all. It was also reported that obtaining status updates on pending requests can be very difficult.

These findings led the Ombudsman on July 11, 2011 to make the following recommendations in order to make the processing of deferred action requests transparent and consistent.

First, the USCIS must use public information describing deferred action and the procedures for requesting it.

Second, it must establish procedures for accepting and processing deferred action requests to promote consistency and to assist local offices in responding to increases in demand.

Third, it must inventory all pending requests to verify that each request received a confirmation of receipt with estimated processing timeframes and USCIS contact information.

Fourth, it must consistently track data related to requests and make available statistics identifying the number of requests received and the number of requests approved and denied.

The CIS Ombudsman is the official is mandated by law to identify areas in which people encounter problems while dealing with the USCIS, and to propose changes to the administrative practices of the agency to minimize these problems.

Immigration Authorities Must Exercise Discretion

Immigration and Customs Enforcement (ICE) Director John Morton recently released a guidance memo to ICE personnel regarding the apprehension, detention and deportation of aliens.

The June 17, 2011 memorandum reminds them to regularly exercise “prosecutorial discretion” in order to prioritize the use of the agency’s limited resources, such as personnel, detention space, and removal assets, and to ensure that the aliens it removes reflect its enforcement priorities.

Prosecutorial discretion refers to a law enforcement agency’s authority to decide to what degree to enforce the law against a particular individual. If discretion is favorably exercised, ICE in effect decides not to exercise the full scope of enforcement authority that is available to it.

The guidance builds on ICE’s March 2, 2011 memo which placed highest priority to aliens that are national security or public safety risks. Recent illegal entrants and fugitives or those who obstruct immigration controls are given second and third priority, respectively.

The exercise of prosecutorial discretion can take many forms, such as the decision whether to issue or cancel a notice of detainer, or whether to issue, reissue, serve, file or cancel a deportation notice. Discretion may be exercised in deciding whom to stop, question or arrest for an administrative violation; settling or dismissing a proceeding; or granting deferred action or parole or staying a final order of removal.

ICE officers, agents and attorneys are required to consider all relevant factors, including the person’s length of presence in the U.S. particularly while in lawful status; circumstances of arrival in the U.S. and manner of entry; pursuit of education in the U.S.; service by the person or an immediate relative in the U.S. military; criminal and immigration history; ties and contributions to the community; ties to the home country and conditions in the country; and eligibility for relief from removal, such as asylum, being a victim of domestic violence or human trafficking or a relative of a U.S. citizen or lawful permanent resident (LPR).

“Prompt particular care and consideration” is called for when a case involves veterans and members of the U.S. army, long-time LPRs, minors, elderly individuals, pregnant or nursing women, individuals present in the U.S. since childhood and those with serious mental or physical disabilities or health conditions.

Negative factors that will be considered include risks posed to national security, a serious or lengthy criminal record, being a known gang member, or having an egregious record of immigration violations, including a record of illegal reentry and having engaged in immigration fraud.

While prosecutorial discretion may be exercised at any stage of the enforcement proceeding, in order to preserve resources ICE officers, agents and attorneys are asked to exercise it as early as possible and even before a request from the alien or the alien’s advocate or attorney.

A related memorandum by Mr. Morton focuses on victims and witnesses of crime and individuals pursuing legitimate civil rights complaints. The memo, also dated June 17, 2011, states that it is against ICE policy to initiate removal proceedings against such individuals, and reminds its agents to exercise discretion on a case-by-case basis, noting the deterrent effect that detention and deportation actions by ICE may have on a person’s decision and ability to report crimes or protect his/her civil rights and liberties.

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