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Washington, D.C. Immigration Law Blog

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Most asylum seekers crossing border have valid cases

When many Maryland residents think about illegal immigration, they picture Mexican nationals crossing the border and looking for work after evading immigration authorities. In reality, that kind of illegal immigration doesn't take place as often as it used to. Today, most of the undocumented immigrants that cross the border are families from Central America that are seeking asylum.

Asylum seekers who enter the U.S. don't try to sneak around Border Patrol stations. In fact, most asylum seekers turn themselves in to Border Patrol and ask for their asylum cases to be heard as soon as they arrive in the U.S. Immigration authorities have a legal obligation to protect migrants with asylum claims from deportation until a decision has been made in each individual case.

Managing the process for workplace immigration

No matter what happens with immigration practices and strategies following the general election in November 2016, Maryland employers will still be required to use Form I-9 to verify the identity and authorization of an immigrant employee to work in the United States. This is a requirement for all workers despite their citizenship, immigration status or national origin.

The first step employers should take is to avoid pre-screening tactics before an employee accepts an offer for work. It is unlawful to use E-Verify, Form I-9 or the Social Security Number Verification Service to determine if an immigrant is authorized for employment. An employer should only complete Form I-9 after the individual receives and accepts an employment offer. Additionally, companies should never assume that immigrants are unauthorized based on a non-confirmation.

Extension approved on EB-5 visa program

When foreign investors back businesses in Maryland and other states, there could be an interest in spending time in the U.S. to oversee operations or manage other details. The EB-5 program allows those who invest substantially to obtain green cards to facilitate that need. In the past, the minimum investment in a venture that would produce jobs in the U.S. was $500,000. The program was slated to expire at the end of the 2016 fiscal year, but a bill was passed to continue the program through December.

Reports indicate that the minimum amount invested by foreign entrepreneurs has not chanced since the early 1990s. Some expect a new bill to provide for a substantial increase. For those investing in areas that suffer from high unemployment rates, the minimum amount would be increased from the current $500,000 to $800,000. The required investment would be raised from $1 million to $1.2 million in areas with lower unemployment rates. There are concerns because participation in the program has dropped in recent years. The lack of certainty related to the possible program changes is believed to be contributing to a decline in applications in recent years.

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.

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