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Washington, D.C. Immigration Law Blog

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Undocumented immigrants are mainly long-term residents

Many of the undocumented immigrants living in Maryland entered the United States more than 10 years ago. After the Great Recession began in 2008, fewer people entered the United States illegally or overstayed their visas. As a result, the population of undocumented immigrants in the U.S. is now made up of mostly long-term residents.

Information about the undocumented immigrant population in the U.S. was gathered by the Census Bureau and analyzed by Pew Research Center in a report that found that the undocumented immigrant population grew for two decades before peaking at 12.2 million in 2007. In 2008, the number of undocumented immigrants in the U.S. dropped, and the population has stabilized at approximately 11.1 million for six years straight.

Addressing immigration issues in mergers and acquisitions

When a Maryland company is in the process of acquiring or merging with another firm, it is important for the owner to do his or her due diligence before closing the deal regarding any potential immigration issues. Failing to do so may leave the company facing substantial financial penalties or losing key employees following the transaction.

A business will need to make certain that it understands the particular immigration statuses of each foreign national employee. Workers who have H-1B visas are required to work only for the employer that sponsored them. The company will need to make certain that it completes the required steps so that it can legally employ H-1B workers.

New opportunity opens up for immigrants

Maryland and other states may be able to benefit through a proposed immigration program. It is intended to help foreign entrepreneurs who are establishing a business stateside.

The initiative through U.S. Citizenship and Immigration Services would apply to individuals in countries such as India that do not have an investment treaty with the United States and are thus not eligible for a E-2 visa. The initiative is available for individuals who are starting or scaling up businesses in the United States. The Department of Homeland Security already has discretionary authority regarding immigration, and this initiative would simply expand this authority to help budding entrepreneurs.

Immigration-related employment discrimination rule changes

Immigrants in Maryland are often exposed to workplace discrimination in the form of unfair requests for documentation when they seek employment. In August 2016, the U.S. Department of Justice proposed some new rules concerning unfair documentary practices that could make it more difficult for employers to discriminate against immigrants. The DOJ wants part of Section 274(a)(6) of the Immigration and Nationality Act to be incorporated into the Code of Federal Regulations.

The rule that the DOJ would like to be added to the CFR prohibits employers from practicing unfair documentary practices while recruiting and hiring employees. Under the rule, an employer may be accused of employment discrimination if it is found guilty of treating an individual differently because of the employee's citizenship status or national origin. Discriminatory intent could be found regardless of an employer's reasons for doing so.

John Lennon's deportation case uncovered secret policy

Some Maryland residents may recall that John Lennon had immigration problems in the United States. In 1972, Lennon hired an immigration attorney because he was being targeted for deportation after an alleged overstay. Work that Lennon's attorney did during that time led to the discovery of prosecutorial discretion, an immigration policy that was once kept secret.

Prosecutorial discretion is a policy that allows immigration officials to delay deportation proceedings for certain individuals who might have sympathetic arguments for remaining in the U.S. Although certain immigrants may have overstayed their visas, immigration officials can use prosecutorial discretion to defer deportation proceedings. Today, prosecutorial discretion is used in the Deferred Action for Childhood Arrivals program.

Undocumented residents in custody over gang allegations

Undocumented Maryland residents may be interested to learn that some immigrants are being taken into custody on unsubstantiated allegations of being involved in gang activity. This is despite President Obama's stated focus on those who were entering the country illegally in order to commit crimes over those who have lived in the country long-term while still abiding by the laws.

One California resident was visiting a friend's home when officers from the Los Angeles Police Department and agents from Homeland Security Investigations arrived to serve a warrant related to a gang-related robbery. The woman, who was undocumented but has documented children and grandchildren in the country, was taken into custody even though she was not connected in any way to the warrant. She was transferred into ICE custody where she has remained in detention since March.

B-1 visas and visiting for business

Foreign nationals who plan to visit Maryland on business may wonder whether or not a B-1 visa is the appropriate choice for them. A B-1 visa is a nonimmigrant visa that allows foreign nationals to enter the U.S. in order to conduct business. It is important for people who are thinking about getting this type of visa to understand what is considered to be business activities as opposed to employment.

B-1 visas may not be used for impermissible purposes. People who use a B-1 visa for a purpose for which it is not intended may face serious consequences, including deportation and being permanently banned from returning to the U.S. One of the key things is that the B-1 visa may not be used to engage in employment.

Government asks for rehearing on DAPA

Maryland residents might be interested in learning about the latest event in the ongoing saga involving President Obama's executive order regarding the Deferred Action for Parents of Americans, or DAPA. On June 23, the Supreme Court of the United States was deadlocked in the case filed against the federal government on behalf of 26 Republican-led states. The split ruling left in effect a lower court ruling that had enjoined the federal government from proceeding with the implementation of DAPA.

On July 18, the federal government filed a motion for a rehearing of the case after the Supreme Court has a ninth justice appointed to it. After Justice Scalia died, Obama moved to appoint Merrick Garland to the bench, a move that the Republican-led Senate has blocked. This has left the Supreme Court short one justice.

E-2 visas and Maryland businesses

The E-2 Treaty Investor visa allows individuals to enter the United States because they have made a large investment in an American business that they own 50 percent or more of. Those who work for such a company may also be allowed to obtain the same visa assuming that they are the same nationality as the owner. British business owners have flocked to places such as Orlando in recent years on such visas.

A company called Thales Group is expected to add 173 jobs in Orlando and another 327 jobs in Melbourne, Florida. The Paris-based company said that it was attracted to Florida because of its pro-business attitude and leadership in the aerospace industry. In addition to creating jobs in Florida, the company is also expected to invest $20 million in the area.

Judge says poor economy no excuse for not paying H-1B workers

In a case that may be of interest to Maryland employers and employees alike, a Department of Labor administrative law judge has ruled that employers cannot use financial hardship to avoid paying employees with H-1B nonimmigrant visa status the wage specified to the federal government. The judge said foreign nationals must be paid the wage indicated on the Labor Condition Application certified by the DOL.

Regulations state that an H-1B employer is required to pay an employee the greater of the actual or the prevailing wage specified on the LCA. If the actual wage is equal to the prevailing wage, the employee must receive that wage during the entire term of approved employment, including periods when there is lack of available work. The employer is only relieved of this obligation if the employee requests to reduce or terminate employment or if the employer terminates the employee for a bona fide reason.

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