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Federal Judge Issues DACA Injunction While Congress Remains at Standstill

Earlier this year, a federal judge in California issued an injunction ordering the Department of Homeland Security to continue the Deferred Action for Childhood Arrivals program, or DACA, and resume renewal applications while a lawsuit challenging the termination of the program moves forward. The court stopped short of requiring Homeland Security to accept new DACA applications and does not compel the agency to issue advance parole for DACA beneficiaries.  Earlier this month, a federal judge in Brooklyn issued a similar injunction, and detailed the substantial harm its repeal would cause to young immigrants and the country as a whole.

These injunctions come at a time when the immigration debate continues to heat up in Congress. The legislature seeks a more permanent solution for DACA beneficiaries, while the President seeks funding for his wall. One bill, which ultimately did not make its way through Congress, but which had the support of the President, proposed a path to citizenship for DACA recipients, but also sought $25 billion in border security and wall funding, limits to family-based migration, and elimination of the diversity visa lottery.  While Democratic leaders strongly opposed this bill, the administration has made it clear that it will veto any bill that does not meet these “four pillars” of immigration strategy.  Congress is struggling to come up with a solution for DACA recipients before the program officially ends on March 5, and faces an uphill battle on reaching an agreement that both lawmakers and the President can agree upon.

While most of the country supports a path to citizenship for DACA recipients, the rest of a potential immigration package could have devastating effects on our immigrant communities and those individuals around the world seeking their own path to U.S. citizenship.

Employers Should Expect Additional Scrutiny in Light of Workplace Raids

Recently, federal agents raided dozens of 7-Eleven convenience stores in one of the Trump administration’s largest immigration enforcement operations against employers so far.  The sweeps included 98 stores in 17 states across the country, in an effort to signal to employers that the administration is intensifying its efforts against businesses that violate U.S. immigration laws U.S.  This raid came on the heels of a government raid of a Chicago bakery that discovered roughly 800 undocumented workers. The government aims to see a 400% increase in work site operations. Immigration and Customs Enforcement hopes to send a strong message to employers and promises more intense scrutiny of businesses that knowingly violate federal laws when it comes to their employees’ eligibility to work.

The government has said in the past that it intends to both prosecute employers who knowingly hire unauthorized immigrants and detain and remove these immigrants.  When agents raid workplaces, they often demand to see employees’ immigration documents. The government regularly conducts I-9 audits to verify whether HR properly completed I-9 employment verification upon hire.  Therefore, it is as important as ever for employers to ensure that their workforce has proper immigration status and that their I-9 records are accurate.  While raids like these are often meant to spark fear and deter employers from hiring unauthorized immigrants, employers of legally authorized immigrants should also be prepared with the appropriate documentation.  For guidance on what employers and employees should do before and during an immigration raid, see our tips.  We update this page periodically.

Foreign-National Employees Do Not Negatively Impact the Wages of U.S. Workers

When U.S. employers hire H-1B workers, one key element of the process is determining what wages those workers will earn, and how those wages compare to the wages of U.S. workers performing similar jobs within normal commuting distance of the proposed work site. This wage calculation is at the heart of the employment-based immigration system Congress devised to protect U.S. workers from unfair competition, while refraining from micromanaging the hiring decisions of U.S. employers.

There is an ongoing public debate about whether the current system is adequately achieving the goals of both protecting U.S. workers and ensuring that U.S. employers have the workers they need to succeed and grow the American economy. Many within the Trump administration have expressed a belief—contrary to what substantial research demonstrates —that foreign workers are being hired to undercut wages that would otherwise be paid to U.S. workers to perform the same tasks. This faulty line of reasoning may be driving legislative proposals, including those that would require all employers who hire highly-skilled temporary immigrant workers on H-1B visas to pay the median or mean wage for the occupation, irrespective of the education or experience the employer requires. Yet, underlying these proposed policy changes is a complex system of wage determinations.  Wage determinations can be inaccurate because they are based on data that is not specific enough to reflect important differences among workers in occupation, education, and skill level. If the prevailing wage determination is not a fair approximation of wages that are actually paid in the marketplace, then the system breaks down and wage parity between immigrants and natives could be undermined.

Knowing that an employer petitioning for an H-1B or immigrant worker was offering the same wages to both foreign high-skilled workers and comparable U.S. workers would mean that U.S. employers were choosing to hire foreign professionals because of their skill sets and availability to fill gaps in the workforce. Unfortunately, there is no government survey that collects the necessary data on wages within occupations, much less a survey that compiles data to calculate wage levels based on experience, education, or level of supervision. Thus, prevailing wages are calculated based on insufficient data and therefore may be contributing to confusion and frustrations on all sides of the debate about whether the employment based immigration system is working well.

Understanding how the government calculates prevailing wages is important, particularly as Congress and the administration discuss potential changes to the employment-based immigration system. Failing to appreciate the defects in the current prevailing wage determination system could render future reforms ineffectual.  Improving the quality of the data that is used to calculate prevailing wages could be a key component of developing effective high-skilled immigration reform efforts.

Navid Dayzad 2018 Super Lawyers Recognition

We are pleased to announce that our Managing Attorney, Navid Dayzad, has been selected as a 2018 Super Lawyer in immigration law. This makes 4 years in a row! This honor is reserved for the top 5% of Southern California attorneys and published in Los Angeles magazine and Thomson Reuters Super Lawyers magazine.

This recognition  reflects the high level of service that Dayzad Law Offices has provided over the past 12 years and our continued commitment to providing high quality immigration advice to current and future clients.

Assessing Current Employment-Based Visa Availability

Charlie Oppenheim of the Department of State recently provided his regular update on the visa bulletin, which indicates the availability of both employment-based and family-based visas. Charlie provides estimates on visa availability based on demand.  With regards to employment-based visas his updates are as follows:

EB-1 China and EB-1 India. These categories will remain current for the coming months, meaning that visas will remain available, but it is possible that they could become limited in the summer.

EB-2 Worldwide. Visas in this category will also remain available for the foreseeable future. Charlie notes a decrease in EB-2 Worldwide demand, which could be exacerbated by the transition of employment-based I-485 processing to the local USCIS field offices.

EB-2 China and EB-3 China. In January, EB-2 China and EB-3 China advance by more than one month to August 8, 2013, and April 15, 2014, respectively.

EB-2 India. Consistent with Charlie’s predictions, in January, EB-2 India will again advance by less than one month from November 1, 2008, to November 22, 2008. It is not likely that the final action date for this category will move into 2009 before summer.

EB-3 India. The final action date for EB-3 India will advance two weeks from October 15, 2006, to November 1, 2006, in January. As we move into the second quarter of Fiscal Year (FY) 2018, demand in this category is levelling out following heavy visa number usage in October. This allows for modest forward advancement which Charlie hopes will continue at the pace of up to a few weeks each month.

With regard to EB-2 and EB-3 India availability, Charlie does not think that EB-3 could advance beyond EB-2, as we have seen for China. However, it remains unclear what impact the USCIS announcement shifting adjudications of employment-based petitions to the local field offices will have on the demand for visa numbers and corresponding visa availability. It could potentially slow EB-3 worldwide demand, allowing EB-3 India to move a bit faster. At this time, EB-3 India upgrade demand has slowed, so there has been some advancement for EB-2 India.

Additional projections are unlikely to be reported in the Visa Bulletin until February at the earliest due to uncertainty in how the transition of employment-based I-485 processing to USCIS field offices will impact visa number demand. Once Charlie gains more clarity regarding the rate of USCIS field office processing of employment based I-485s, reporting of projections in the Visa Bulletin should resume.