Badmus

Broadgate, Inc., et al v. USCIS, et al
Case number: 1:10cv00941

This Application for Preliminary Injunction and Complaint filed on June 8, 2010 by Greenberg Traurig LLP in the U.S. District Court of the District of Columbia, challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships, resulting in the denial of H-1Bs filed by IT staffing firms. Judge Gladys Kessler will be hearing the case.

AILA InfoNet Doc. No. 10060830 (posted Jun. 8, 2010)

Categories: Employment Immigration, Employer Compliance, Immigration Litigation and Removal, Blogroll, General |

ALEXANDRIA, Va., June 8 /PRNewswire-USNewswire/ — TechServe Alliance, the national trade association representing the IT services industry, filed a lawsuit today in U.S. District Court in and for the District of Columbia against U.S. Citizenship and Immigration Services (USCIS), Alejandro Mayorkas, Director of USCIS, the Department of Homeland Security (DHS), and Janet Napolitano, Secretary of Homeland Security.

The five count Complaint charges that the government improperly and without any valid legal basis altered long-standing policy that has allowed IT staffing firms to obtain H-1B visas on the same basis as other companies. In an abrupt reversal of its policy without any notice or opportunity for comment and contrary to well settled law, the government now erroneously contends IT staffing firms are not “U.S. employers” and are therefore ineligible to serve as petitioners for H-1B visas. Since implementing this new policy, the agency has been improperly denying petitions of IT staffing firms on that basis. Along with the complaint, TechServe Alliance filed a motion seeking entry of a preliminary injunction barring the agency from continuing to enforce this policy as it was adopted in violation of law.

“USCIS’s actions are a thinly veiled attack on the IT staffing industry and its business model,” observed Mark Roberts, CEO of TechServe Alliance.

In a Memorandum dated January 8, 2010 by Donald Neufeld, Associate Director of Service Center Operations at USCIS (”Neufeld Memo”), USCIS reversed well settled policy, determining that IT staffing firms are not “U.S. employers” under U.S. immigration law and are therefore ineligible to access the H-1B visa program. USCIS arrived at this erroneous determination by arguing that IT staffing firms fail to exercise control over their consultants; summarily concluding there is no employer-employee relationship–an element of the definition of U.S. employer. In doing so, USCIS ignores the fact that IT staffing firms hire, fire, pay and supervise; activities which the applicable regulation as well as other areas of law have long recognized as establishing an employer-employee relationship.

In Count I of the Complaint, TechServe Alliance contends the Neufeld Memo amends an existing legislative rule allowing the Secretary of Homeland Security to issue the rule only after a notice-and-comment rulemaking process has been properly conducted in accordance with the Administrative Procedure Act (APA). The APA requires federal agencies to provide notice and an opportunity for interested parties to comment and have those comments considered prior to issuing final rules and regulations. Because USCIS failed to conduct such a process in accordance with the APA, TechServe Alliance seeks entry of a preliminary injunction barring the agency from enforcing its rule and vacating the Neufeld Memo. Count II sets forth a claim under the Regulatory Flexibility Act in light of the government’s failure to conduct the required analysis of the rule’s impact on small entities, Count III sets forth a claim that the regulation exceeds USCIS’s statutory and regulatory authority, and Counts IV & V assert the Neufeld Memo is arbitrary and capricious and not authorized by law.

“IT staffing is a lawful business model that greatly benefits the U.S. economy, U.S. businesses and U.S. workers. The government should not be allowed to attack the industry by circumventing the rulemaking process and reversing long-standing policy by decree. Because of their vast power to destroy lives and businesses, government institutions should be required to rigorously comply with applicable law and process. USCIS, DHS and its leadership failed to meet the most minimal standards of compliance with the law. Despite wide spread objection and outrage over the policy enunciated in the Neufeld Memo on both substantive and procedural grounds, USCIS and DHS have failed to rescind this policy. Accordingly, we were left with no choice but to defend the industry against these unfair, ill-conceived, and unauthorized actions and seek equitable relief from the Courts,” stated Roberts.

Alongside TechServe Alliance, the American Staffing Association and IT staffing firms Broadgate, Inc., Logic Planet, Inc. and DVR Softek Inc. are also plaintiffs in the action.

Categories: Employment Immigration, Employer Compliance, Immigration Litigation and Removal, Blogroll, General |

On March 31, 2010, the Supreme Court issued a decision on the right to counsel for noncitizens charged with committing a crime. The Court held that criminal defense lawyers must advise their noncitizen clients about the risk of deportation if they accept a guilty plea. The Court recognized that current immigration laws impose harsh and mandatory deportation consequences onto criminal convictions, and that Congress eliminated from these laws the Attorney General’s discretionary authority to cancel removal in meritorious cases. The Court said, “These changes to our immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction. The importance of accurate legal advice for noncitizens accused of crimes has never been more important.”

The case, Padilla v. Kentucky, involved a Vietnam War veteran who has resided lawfully in the U.S. for over 40 years. His criminal defense lawyer told him not to worry about the immigration consequences of pleading guilty to a crime, but that advice was wrong. In fact, the guilty plea made Mr. Padilla subject to mandatory deportation from the United States. The state of Kentucky said that Mr. Padilla had no right to withdraw his plea when he learned of the deportation consequence. The decision reverses the Kentucky court. It also rejected the federal government’s position (which had been adopted by several courts) that a noncitizen is protected only from “affirmative misadvice” and not from a lawyer’s failure to provide any advice about the immigration consequences of a plea.

 ”The right to counsel is at the very core of our criminal justice system. The Court affirms that immigrants should not be held accountable when they rely on incorrect advice from their lawyers or where counsel fails to provide any immigration advice at all,” said Beth Werlin, an attorney at the American Immigration Council’s Legal Action Center. “Today’s decision also reminds us that ultimately, the increased criminalization of immigration law and lack of flexibility has resulted in harsh results. Congress should do its part to restore immigration judges’ discretion to consider the particular circumstances in a person’s case, thus affording each person facing deportation an individualized and fair opportunity to be heard.”

Categories: Legislation and Policy, Immigration Litigation and Removal, General |

SAN DIEGO - A San Diego-area French bakery, along with its owner and a manager, are charged in a 16-count indictment unsealed Wednesday resulting from an investigation by U.S. Immigration and Customs Enforcement (ICE) into allegations the business knowingly hired undocumented workers. The French Gourmet, Inc, of San Diego, Calif., together with its president and one of the company’s managers, are accused in the indictment handed down by a federal grand jury here April 15. The indictment alleges the defendants conspired to engage in a pattern or practice of hiring and continuing to employee unauthorized workers, a misdemeanor, in addition to 14 felony counts, including making false statements and shielding undocumented alien employees from detection.

Also named in the indictment are the bakery’s owner, Michel Malecot, 52, and a company manager, Richard Kauffman, 51, both of San Diego. The men are charged with 12 felony counts for making false statements and shielding undocumented alien employees working at the bakery from detection. They were arraigned Wednesday. If convicted, Malecot and Kauffman face a maximum of five years in prison and a $250,000 fine on each count. The indictment also seeks criminal forfeiture of proceeds gained from the corporation’s unlawful activities.

“Employers have a responsibility for maintaining the integrity of their workforce,” said Mike Carney, acting special agent in charge for ICE Office of Investigations in San Diego, “This indictment shows ICE’s commitment to holding businesses accountable when they repeatedly ignore immigration laws as it relates to their workforce. The goal of our enforcement effort is two-fold, first to reduce the demand for illegal employment and, second, to protect job opportunities for the nation’s lawful workforce.”

According to the indictment, the company’s managers, including Malecot and Kauffman, certified on the firm’s Employment Verification Forms (I-9) that the documents they examined appeared to be genuine, and to the best of the their knowledge, the employees listed on the I-9 were eligible to work in the United States. The managers then put the illegal workers on the company’s payroll and paid them by paycheck until they received “no match” letters from the Social Security Administration (SSA) advising that the Social Securitynumbers being used by the employees did not match the names of the rightful owners of those Social Security numbers.

After receiving the “no match” letters, The French Gourmet, Inc., then allegedly conspired to pay the undocumented employees in cash until the workers produced a new set of employment documents with different Social Security numbers.  In May 2008, ICE agents executed a federal search warrant at The French Gourmet and arrested 18 undocumented workers. During the searches, ICE agents seized employee and payroll records as evidence in the criminal case.

In 2009, ICE implemented a comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. Under this strategy, ICE is focusing its resources on auditing and investigating employers suspected of knowingly employing illegal workers. The goal of the enforcement strategy is to promote national security, protect critical infrastructure and ensure fair labor standards. ICE is using all available criminal and administrative tools, including civil fines and debarment, to penalize and deter illegal employment. In fiscal year 2009, ICE worksite investigations resulted in a total of 410 criminal arrests, including 114 management personnel.

ICE Press Release

Categories: Employment Immigration, Employer Compliance, Immigration Litigation and Removal, Blogroll |

Ninth Circuit Court of Appeals Adopts Legal Action Center’s Arguments
Washington D.C. - In a decision issued today, the Ninth Circuit Court of Appeals adopted the arguments of the Legal Action Center (LAC), of the American Immigration Council, that the United States Citizenship and Immigration Services (USCIS) unlawfully imposed extra-regulatory requirements on a petition for a worker of “extraordinary ability” (EB-1). The case in question, Kazarian v. USCIS, involves a theoretical physicist whose employment-based visa was denied because he did not demonstrate “the research community’s reactions to his [scholarly] publications” - an arbitrary requirement with no justification in the law.

In today’s decision, the Ninth Circuit amended its previous ruling and reversed the agency’s interpretation. The court held that “neither USCIS nor an [Administrative Appeals Office] may unilaterally impose novel substantive or evidentiary requirements beyond those set forth [in the regulations].” The Ninth Circuit also found that the agency impermissibly added another unlawful criteria as well.

The case stems from a 2009 Ninth Circuit Court ruling in favor of USCIS. Following that ruling, the LAC and NAFSA submitted an amicus brief in support of rehearing Kazarian’s case. The LAC argued that USCIS erred by adding an additional requirement that did not exist under the law. Kazarian was represented pro bono in the rehearing petition by Wolfsdorf Immigration Law Group.

Today’s decision sends a clear message that USCIS must follow the law and provide a fair process. Unfortunately, this case is not an isolated incident and not the first time the LAC has successfully challenged the policies and practices of the agency. The LAC will continue to challenge similar attempts by the government to operate outside of the law.

“Immigration law is complicated enough without the immigration agency imposing additional requirements and burdens of proof that aren’t in the statute or regulations and that ultimately undermine the goal of attracting the best and brightest to our shores,” said Benjamin Johnson, Executive Director of the American Immigration Council.

To read the decision in its entirety visit: http://www.ca9.uscourts.gov/datastore/opinions/2010/03/04/07-56774.pdf -

Legal Action Center press release

Categories: Employment Immigration, Immigration Litigation and Removal, General |

Shortly after a devastating earthquake destroyed the homes and lives of innumerable Haitians, Department of Homeland Security Secretary Napolitano announced the designation of Temporary Protective Status (TPS) for the roughly 100,000-200,000 eligible Haiti nationals currently in the United States as of January 12, 2010. As the world continues to respond with an outpouring of relief efforts, it is important to understand the facts on what TPS is, what it isn’t, how it works and who is eligible.

The Immigration Policy Center (IPC) released a fact sheet which provides background information vital to understanding TPS, including:

• Temporary Protected Status (TPS) is a temporary, humanitarian form of relief from deportation that does not include granting permanent residence or “amnesty” to unauthorized immigrants in the United States.
• The 100,000-200,000 Haitian immigrants whom the Department of Homeland Security (DHS) estimates are now in the United States on a temporary basis or without authorization will not be subject to removal as long as there is no functioning country to which they can return, and provided that they do not have criminal records.
• The Secretary of Homeland Security, “in consultation with the Secretary of State, can issue TPS for periods of 6 to 18 months and can extend these periods if conditions do not change in the designated country.”
• Major requirements for TPS include compliance with nationality and physical presence criteria (such as evidence of a passport issued by the designated country), continuous physical presence in the United States since the date TPS went into effect, timely registration, and being otherwise admissible as an immigrant.

To view the fact sheet in its entirety, see:

• Granting Refuge: Temporary Protected Status (TPS) for Haitians in the United States

Categories: Legislation and Policy, Immigration Litigation and Removal, Family Immigration, Blogroll, General |

The American Immigration Council applauds today’s U.S. Supreme Court decision ensuring that immigrants facing deportation have fair process in the review of their cases. The Court ruled that individuals who seek to reopen their deportation orders have the right to appeal to the federal courts if the immigration court refuses to hear the appeal. The Court’s decision protects immigrants’ access to federal court review and affirms the role of the courts in our system of checks and balances on government power.

The case, Kucana v. Holder, was brought by an asylum seeker who filed a motion to reopen his removal proceedings because of changed circumstances in his request for asylum. A motion to reopen is a procedural mechanism that allows individuals to present new evidence to an immigration judge.    “The Supreme Court’s decision reaffirms that immigrants are entitled to fair process” said Beth Werlin, Attorney at the American Immigration Council’s Legal Action Center. “Given the stakes involved in immigration cases, federal court review is an important check on the executive branch and is a necessary layer of protection for individuals who are facing removal from the United States.”    

Read more about the Supreme Court’s decision at the Legal Action Center’s Supreme Court Update webpage.

Categories: Legislation and Policy, Immigration Litigation and Removal, General |

On June 26, 2009, the ACLU of Texas made the following, highly-anticipated announcement regarding the settlement of a pending case in Brownsville, Texas, involving Mexican Americans who were categorically denied U.S. passports simply due to the fact that they were born by midwife:

State Department Agrees To Fair Issuance Of Passports To Mexican Americans (6/26/2009)

FOR IMMEDIATE RELEASE
CONTACT: (212) 549-2666; media@aclu.org

McALLEN, TX –The U.S. Department of State (DOS) has agreed to implement new procedures designed to ensure the fair and prompt review of U.S. passport applications by Mexican Americans whose births in Texas were attended by midwives. Under the agreement, no eligible applicant should be denied a passport.

The procedural changes are the result of a settlement agreement following a class action lawsuit filed by a coalition of civil rights and legal organizations including the American Civil Liberties Union, the ACLU of Texas, the international law firm Hogan & Hartson LLP, and Refugio del Rio Grande, Inc.

“The new procedures agreed to by the government are aimed at restoring the core American values of fairness and equality to the ways in which it issues U.S. passports,” said Vanita Gupta, staff attorney with the ACLU Racial Justice Program who worked on the case along with the ACLU Immigrants’ Rights Project. “Citizens will no longer be denied a passport solely because of their race, ancestry or because they happened to be born at home with a midwife.”

The settlement comes at a particularly crucial time. The Western Hemisphere Travel Initiative (WHTI), which went into effect June 1, requires every American who wishes to exit or enter or the United States to have a valid U.S. passport or passport card. Previously, citizens needed only a valid U.S. driver’s license to travel between the U.S. and Mexico or Canada.

“For U.S. citizens who live in the Southwest, a passport is now as necessary as a driver’s license,” said Lisa Graybill, Legal Director for the ACLU of Texas. “We are relieved that US citizens who work, shop, receive medical care, and have family on both sides of the border will no longer be in danger of losing their jobs, risking their health, or being separated from family members simply because of the circumstances of their birth.”  

Although midwifery has been a common practice for more than a century – particularly in rural and other traditionally underserved communities – the lawsuit charged that DOS was violating the due process and equal protection rights of virtually all midwife-delivered U.S. citizens living in the southern border region by forcing them to provide an excessive number of documents normally not required to prove their citizenship. Then, even after the applicants supplied further proof of their citizenship, DOS responded by summarily closing their applications without explanation.

“Because DOS lacked clear standards, countless passport applicants were treated arbitrarily, said Lisa Brodyaga, the attorney for Refugio del Rio Grande. ”With this settlement, applicants born with midwives are guaranteed the same full and fair consideration of their applications as everyone else.  This is especially critical now given that the June 1st deadline of WHTI has passed.”

The lawsuit also charged that the Department’s practices were violating the Administrative Procedure Act, which was enacted as a safeguard against arbitrary and capricious government agency procedures. During the course of the litigation, several of the plaintiffs were granted passports even though they had been denied previously on the very same showing of evidence of citizenship. 

Pending court approval, DOS will train its staff on how to fairly weigh all the evidence provided in passport applications and how to avoid improperly subjecting people whose births were assisted by midwives in Texas and along the U.S.-Mexico border to heightened scrutiny in reviewing their passport applications. All denials will be automatically reviewed by a three-member panel comprised of experienced DOS staff members, and if that panel also denies an application, DOS must communicate the specific reasons for the denial to the applicant. The applicant can then challenge the denial and ask DOS to reconsider its decision.

Additionally, anyone birthed by a midwife who has filed an application for a passport between April 2003 and September 15, 2008 and, with a few exceptions, whose application was not expressly “denied,” can re-apply for free. DOS will be setting up mobile units across the border on specific dates to assist those reapplying.

DOS has also agreed to restrictions on a list it maintains of suspect midwives and other birth attendants, which it purported to use to justify its discriminatory policies. Importantly, DOS will not deny a passport application simply because the applicant’s birth attendant or midwife is on the list. Furthermore, DOS will conduct regular reviews of the list to ensure that no one is included unless DOS has a reasonable, lawful basis to do so. These measures will help ensure that DOS does force passport applicants to take unnecessary measures to prove their citizenship and does not arbitrarily deny passports merely because the individual was born to a suspect midwife. 

“We’re very happy that we were able to come to an agreement with the government that recognizes every U.S. citizen’s constitutional right to be treated with fairness and equality,” said Adam K. Levin of Hogan & Hartson. “You can’t deny basic rights to an entire group of U.S. citizens because their parents did not deliver them in hospitals.”

…. 

To read the announcement and find links to the complaint and settlement, click here.

By Michelle Richart

Categories: Legislation and Policy, Immigration Litigation and Removal, Family Immigration, Blogroll, General |

On July 1, 2009, Attorney General Holder appointed Brian M. O’Leary as the new Chief Immigration Judge.  O’Leary has been working with the EOIR and BIA since 1994.  Prior to then Judge O’Leary worked for many years with the legacy INS.  To read the Department of Justice announcement, click here.

By Michelle Richart

Categories: Immigration Litigation and Removal, Blogroll |

Reuniting Families Act (S. 1085) was introduced in the Senate on 5/29/2009.

The bill aims to help family members reunite in America in a timely manner by reforming America’s family-based immigration system to end lengthy separations of loved ones, promote family stability and foster the economic growth.

For the full text, click here

Categories: Immigration Litigation and Removal, Family Immigration, Firm News, Blogroll, General |